NUMBER 23 MARCH 2019 INSTITUTE OF LICENSING Journal of Licensing The Journal of the Institute of Licensing
IN THIS ISSUE
The (underutilised) role of mediation in licensing by Jeremy Phillips QC
Who saves the saviour? by Jon Collins
Rethinking Welsh taxi licensing by Tara O’Leary
Bright line policies: the right to say no by Philip Kolvin QC
Understanding how the costs system works
NUMBER 23 by Charles Holland
Taxi and private hire vehicle licensing - steps towards a more robust system
MARCH 2019 by James Button
Statutory Guidance - consultation by James Button
Opinion: In praise of cross-examination
JOURNAL OF LICENSING by Gary Grant
Opinion: When is an expert not an expert? When crime statistics are cited by Sarah Clover
The Journal of the Institute of Licensing © Institute of Licensing 2019 All rights reserved www.instituteoflicensing.org Institute of Licensing Journal of Licensing ISSN 2048-9110 Institute of Licensing Board
Daniel Davies - Chair Patrons Journal of Licensing Myles Bebbington - Vice Chair, Eastern Regional Director & Chair Philip Kolvin QC and Training & Qualifications Committee Jon Collins General Editor Deputy Editors Editorial Assistants Gary Grant - Vice Chair Leo Charalambides, FIoL Andrew Pring Natasha Roberts Barrister, Inner Temple Julia Sawyer Carla Sparrow Phil Andrews - Finance Director President George Barnes - South East Regional Director & Chair James Button Email: [email protected] Clare Bradley - Home Counties Regional Director & Chair Visit: www.instituteoflicensing.org David Chambers - Advisor to the Board Sarah Clover - West Midlands Regional Director & Chair The views expressed in the Journal are those of the writer and do not necessarily represent the views of the Institute & Chair of Management, Organisation & Development Committee of Licensing. James Cunningham - Northern Ireland Branch Chair Susanna Fitzgerald QC - Director Copyright lies with the author, all requests to be submitted to the Institute of Licensing © 2019 Institute of Licensing. John Garforth - North West Regional Director Gareth Hughes - London Regional Chair All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or David Lucas - East Midlands Regional Director & Chair storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this Stephen McGowan - Scotland Regional Director & Chair publication) without the written permission of the copyright owner except in accordance with the provisions of the Martin Phillips - Wales Regional Director Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Tim Shield - North East Regional Director & Chair Saff on House, 6-10 Kirby Street, London, EC1N 8TS, England. Applications for the copyright owner’s written permission Steven Wright - South West Regional Director & Chair to reproduce any part of this publication should be addressed to the Institute of Licensing. Full acknowledgement of author, publisher and source must be given.
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This issue shall be cited as (2019) 23 JoL. Foreword
Welcome to the Spring 2019 edition of the IoL’s Journal of In November 2018 we launched a new publication, LINK Licensing. (Licensing, Information, News and Knowledge), which will further improve our regular engagement with you, our Last year was a busy one for the IoL and we can look back members. with some pride at how we are increasingly recognised as the authentic professional voice for licensing practitioners. This edition of the Journal contains numerous articles that will be of great interest to licensing practitioners. Philip Kolvin Our signature event, the National Training Conference, took QC writes about bright line policies; Tara O’Leary brings us up place over three days in November and was once again a sell- to date on the Welsh taxi & private hire consultation; Jeremy out. Even in these financially difficult times, our membership Phillips QC writes on mediation in the licensing process; recognises and values the content of this event and continues Jon Collins gives us his thoughts on realising opportunities to support it. the night-time economy has to offer; Charles Holland gives us an overview of costs in licensing appeals; James Button The development of new training and qualifications considers the Government’s thoughts on the taxi reform continues apace, with training for councillors and police and assesses the long awaited consultation on the Statutory licensing offi ers now in the final stages of discussion and Guidance. We also have Opinion pieces from Gary Grant on development. the use of cross-examination in licensing hearings and Sarah Clover on the use / misuse of expert witnesses. As ever we have a wealth of courses lined up for the coming year - from our Professional Licensing Practitioners Course, In addition, we have all our regular features: James Button Animal Licensing, Scrap Metal Dealers, SEV Licensing and on the outcome of the Reading v Ali case in the High Court; Zoo Licensing through to our popular Taxi Licensing courses Nick Arron on gambling; Stephen McGowan with an update (Basic & Advanced) and our Taxi Conferences. on animal licensing developments in Scotland; Richard Brown on the interested party in the licensing system; Julia This year we will also be hosting two Safeguarding in Sawyer’s public safety and events update and IoL news from Licensing conferences, one in Taunton and the other in Sue Nelson. Doncaster. I hope you enjoy this latest edition of the Journal and find Please note our membership year comes to a close on it a stimulating read. As always, we welcome your feedback. 31 March, and members will then be invited to renew. The Institute’s membership subscriptions will remain the same as 2018 / 2019 for the 2019 / 2020 membership year.
1 JOURNAL OF LICENSING ISSUE 23 CONTENTS
1 Foreword Daniel Davies
3 Editorial Leo Charalambides
4 The (underutilised) role of mediation in licensing Jeremy Phillips QC
9 Taxi licensing: law and procedure update [1] James Button
15 Who saves the saviour? Jon Collins
19 In praise of cross-examination Gary Grant
21 The interested party Richard Brown
24 Rethinking Welsh taxi licensing Tara O’Leary
28 Institute of Licensing News Sue Nelson
32 Scottish law update Stephen McGowan
36 Bright line policies: the right to say no Philip Kolvin QC
43 When is an expert not an expert? When crime statistics are cited Sarah Clover
45 Gambling licensing: law and procedure update Nick Arron
47 Understanding how the costs system works Charles Holland
56 Public Safety: event management update Julia Sawyer
59 Taxi licensing: law and procedure update [2] James Button
68 Taxi licensing: law and procedure update [3] James Button
72 Directory
2 Editorial
The successful launch and reception of LINK has provided us contributors make to ensure current content: James Button here at the Journal of Licensing with an opportunity to review - having already submitted a draft of his taxi and private hire and revise our editorial policy. Our approach since we began update - at very short notice and up against our print deadline in 2011 has been to focus on the policy, law, procedure and reworked and redoubled his efforts in order to comment administration of local government licensing law (alcohol upon Reading v Ali [2019] and the Government response to and entertainment, sex establishments, gambling and taxi the Finish Group on Taxi and Private Hire Vehicle Licensing. and private hire vehicles along with the less common and contentious local authority licensing regimes). Additionally, The one-page Opinion pieces have naturally and gradually the Journal has sought to provide a space in print to highlight become longer and more provocative, though this may say the life and work of the Institute and of our membership. as much about our two key contributors – Sarah Clover and The opportunity afforded by LINK to focus on these matters Gary Grant – as our editorial policy. Both Gary and Sarah can allows the Journal to free up space and explore further and always be counted on to provide submissions where time and more deeply our core interests. conflicting commitments hinder others from contributing. This is a trait shared by our regular contributors, who give up Moving forward, the Journal will continue to focus upon so much time and effort to ensure the success of our Journal. the policy, law, procedure and administration of local government licensing law and practice. Above all, the aim Increasingly, and with ever greater visibility, the Institute remains to provide updates, articles and opinions that are is called upon and participates in consultations which will of practical use to our membership. This ‘practical use’ continue to be highlighted in our IoL News pages. goes beyond general interest and continuing professional development. The goal – which we re-commit to – is for As part of the next phase of our development, I am pleased the content of the Journal to be of such quality and content to welcome Charles Holland (Barrister, Trinity Chambers) that it can be used as a reference tool in training materials, and Richard Brown (Solicitor, Westminster Citizen Advice development of policies, during town hall hearings and on Bureau) as Assistant Editors to the Journal. appeals in the Magistrates’ and Crown Courts. It seems to me that Charles’s contributions epitomise what It is very much hoped and understood that we already I look for in articles. His views on experts in the last issue deliver in this regard. In this issue alone our leading article is have encouraged three responses in the current issue on the by Jeremy Phillips QC, Editor in Chief of Paterson’s Licensing ways in which we question and cross-examine participants Acts and both our past-Chairmen and current patrons Philip in hearings (see: Grant), purported experts (see: Clover) and Kolvin QC and Jon Collins contribute: these three certainly the relationship between offi ers and residents (see: Brown). provide content to read, re-read and reference. However, Richard’s views are similarly stimulating. Almost uniquely this re-commitment to making the Journal a journal of in the licensing world, by acting for residents, he offers a reference (albeit in our modest way) will be evident in the rare view from his position as a fulcrum between operators subject-matter of future articles, which will be increased in and responsible authorities. I look forward very much to length to allow our contributors greater scope to express and both Charles’s and Richard’s increased involvement and articulate their views. contributions.
The regular features will continue to provide overviews All-in-all, it seems to me that the print output of the and commentary of up-to-date developments. This issue Institute goes from strength to strength. particularly demonstrates the efforts that our regular 3 Lead article The (underutilised) role of mediation in licensing
As a way of resolving disputes, mediation has proved its value in civil cases but has yet to make its mark in the licensing field. Jeremy Phillips QC examines why this is so, and suggests practitioners should consider its merits more closely
Mediation is unlikely to be the first thing which springs to decision to settle and the terms upon which any such mind when one prepares for a heavily contested licensing settlement is achieved.2 hearing concerning the grant of a premises licence - indeed, the possibility of any value being derived from mediation at Beyond this, it is difficult to define mediation with any this stage in the process might seem to be remote. The parties particularity in the abstract; it is a fundamentally flexible appear to be firmly entrenched. Contrary to expectation, process, which will be tailored to meet the particular needs however, that is precisely the time when thoughts ought of the parties. Its definition takes colour from the dispute to be turning to mediation as a process where all parties under consideration in practice; there is a wide range of can emerge as “winners” - or at least not as losers in the issues - from the selection of the mediator and process to conventional sense. In this article we will seek to argue that be followed during the mediation, through to the means by mediation offers a significant number of benefits which which any agreement will be reached and recorded - over ought to be more readily exploited by licensing practitioners which the parties, in consultation with the mediator, have a and those before whom they appear. wide degree of discretion.3
The article will proceed in four parts. Part I will define Despite the difficulties associated with speaking about mediation, before going on to sketch out its proliferation in mediation in general terms, it can, nevertheless, accurately recent years. Part II will discuss some of the challenges and be stated that the uptake of mediation - in all its different opportunities posed by mediation. Part III will describe a guises - has sharply increased over the last two decades; this typical licensing case in which mediation was successfully increase forms a small part of what has been identified by Sir utilised. Part IV will conclude with some brief observations Rupert Jackson as a “...pan-European, indeed global trend...” on the road ahead for mediation in licensing. in favour of alternative dispute resolution.4 In England and Wales, this trend was ushered in by the Woolf Reforms of the Part I: Mediation - what is it? Why haven’t we civil justice system in the late 1990s and later placed on a heard much about it? solid footing by a series of judicial decisions which endorsed Mediation is a form of alternative dispute resolution1 where the use of alternative dispute resolution - and in particular, an independent and neutral third party - the mediator - mediation - in the context of civil litigation.5 Although the actively assists the parties in working towards a negotiated agreement of the dispute or difference under consideration. 2 For an informative overview of the definition of mediation, The process is conducted confidentially so that the parties see: S Blake, J Browne & S Sime, A Practical Approach to Alternative can engage in a frank exchange of views amongst themselves Dispute Resolution (4th Edn, OUP 2016) Ch 14. and between themselves and the mediator. Throughout the 3 For an example of how a mediation might be run in practice, process, the parties retain complete control both over any see the resources on the Centre for Effective Dispute Resolution (CEDR) website: < https://www.cedr.com/about_us/modeldocs/> (accessed 7 December 2018). 4 Jackson, “Civil Justice Reform and Alternative Dispute 1 Often abbreviated to ADR, which can take the form of mediation, Resolution” (Chartered Institute of Arbitrators, 20 September negotiation, collaborative law, conciliation and arbitration. 2016)
7 Role of mediation in licensing
The licensing authority, which itself had some interest in the currently has in the context of civil litigation, it will require important local event, duly extended the premises licence. somewhat of a sea-change in opinion amongst practitioners. An appeal was lodged. Such a change will not occur unless a number of so-called “early adopters” rise to the challenge of championing the On the first day of the three-day licensing appeal it became cause of mediation in this field, with a view to ultimately apparent that insufficient time had been allocated and persuading the reluctant majority of the opportunities which that at least a further two days needed to be found. The mediation presents. 19 hearing was adjourned. However, at the instigation of the respective advocates it was suggested that the principal Those interested in seeing such a change occur would be protagonists, having been brought together for the occasion, well-advised to reflect upon the unique opportunities - and might sensibly sit down to discuss the issues. To cut a long indeed challenges - which mediation presents in the context story short, by using counsel for the authority as a de facto of licensing and consider how these are best explained to mediator it proved possible (by 1am the following morning!) clients and applied to their advantage. This will require to thrash out detailed terms for an enduring settlement, innovative thinking in many cases, but it will ultimately be so avoiding the delay, significant cost and uncertainty for to the benefit of individual clients and the sector as a whole. all concerned of leaving the outcome to lay magistrates. Although compromises were made on all sides, the benefits Jeremy Phillips QC of such an approach were very apparent to all concerned. Barrister, Francis Taylor Building
Part IV: Mediation in licensing - looking Conor Fegan ahead Pupil Barrister, Francis Taylor Building It is clear that licensing has, for too long, lagged behind many other sectors in its uptake of mediation; there is no reason 19 On the importance of early adopters and the effect on the why this should continue to be the case. It is hoped that market, see: E Rogers, Diffusion of Inn vations (5th Edn, 2003). this piece will cause practitioners to reconsider the role of mediation in their practices and in the sector as a whole.
Whether or not mediation will find a home in the context of licensing must remain a matter of speculation. However, if mediation is to gain the firm foothold in licensing that it
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8 Taxi licensing: law and procedure update Reading v Ali - the outcome
Reading’s assertion that a parked-up Uber driver was standing for hire has been found wrong in the High Court, as James Button reports
The question of what is exactly meant by standing or plying car. The respondent would not have taken any passengers for hire in relation to hackney other than via the [Uber] app.2 carriage legislation has never been comprehensively When he was approached by enforcement offi ers, he said answered by the senior courts. that he was waiting for booking to come to him via the Uber Despite these activities being app. illegal if undertaken by any vehicle other than a hackney The council argued that the appearance of the vehicle carriage located within the on the app amounted to plying for hire because it was a district in which it is licensed for solicitation to hire the vehicle (although as the vehicle was over 170 years, questions still rage as to exactly what is and stationary, it is suggested that this should have been a isn’t covered by the prohibition contained in s 45 of the Town reference to “standing for hire” ).3 Police Clauses Act 1847. The defence argued that such an approach would mean The latest case concerning this is Reading Borough Council that any booking of private hire vehicle by means of an app v Ali.1 Due to the importance of this case and its implications would amount to plying for hire, and this approach would fly around England and Wales, this is a lengthy consideration of in the face of significant senior court precedent. the judgment. The prosecution was heard by the Chief Magistrate. Mr Ali The facts in this case were fairly straightforward. In was acquitted. A comprehensive judgment was issued, and January 2017, Mr Ali was a licensed private hire driver, driving the council appealed by way of case stated to the High Court a licensed private hire vehicle. Both licences had been issued on the following points (at paragraph 8 of the judgment): by Transport for London (TfL), and he was working for Uber under their London private hire operators’ licence. He was The questions of law on which our opinion is sought in the lawfully parked on the public highway in Reading (Kings case stated are as follows: Road). He was not near a bus stop or hackney carriage stand, nor waiting in a hackney carriage stand. His vehicle (1) As a matter of law did the display of the respondent’s was one of around 60 vehicles operated by Uber appearing vehicle as the outline of a car on the smartphone apps of on the Uber app as being located in Reading at the times in potential passengers constitute an invitation to book the question (the prosecution concerned two offences, alleged respondent’s vehicle? to have been committed either side of midnight on 21 and 22 (2) As a matter of law did the display of the respondent’s January 2017). vehicle as the outline of a car on the smartphone apps of potential passengers constitute an invitation to book The vehicle itself: an Uber vehicle in the vicinity, even if it were not the respondent’s? had no markings indicating it was for hire, but it had two (3) If the answer to questions (1) or (2) is yes: small TfL roundels, one in the back window and one on (a) Did the Chief Magistrate err in law in holding it to be the front windscreen, which were highly visible and which relevant to whether the respondent was plying for hire, that indicated it was licensed by TfL as a PHV. The car did not his vehicle had no distinctive markings, was not at a stand advertise a number to contact to hire it. The car was not and was not available on the street to pick up passengers available to anyone hailing it on the street but could only in the traditional way? and/or be hired via the Uber app. The respondent was not hooting or flashing his lights or otherwise drawing attention to his 2 Per Flaux LJ at para 4. 3 See Button on Taxis: Licensing Law and Practice 4th edition, para 1 [2019] EWHC 200 (Admin) 7 February 2019 (unreported). 8.8. 9 Title of the article / Type of article Taxi licensing: law and procedure update
(b) Did the Chief Magistrate err in law in holding it to be a seats and without advance booking no seatbelts available. relevant consideration that the whole of the transaction between the passenger and the driver, and the passenger The Divisional Court upheld the decision of the magistrate and the licensed operator, was conducted via a smartphone acquitting the driver and company of unlawfully plying for app, where the booking process starts, is recorded and the hire. Lord Trevethin CJ at 557 said: fare estimated? “In my judgment a carriage cannot accurately be said to (4) On the facts agreed and found by her, did she err in law ply for hire unless two conditions are satisfied. in finding that the prosecution had not proved that the (1) There must be a soliciting or waiting to secure respondent was plying for hire? passengers by the driver or other person in control without any previous contract with them, and The case was heard in January by Flaux LJ and Holgate J, (2) the owner or person in control who is engaged in or with judgment being given by Flaux LJ. Having summarised authorizes the soliciting or waiting must be in possession the law4 he then identified the crux of the issue in the of a carriage for which he is soliciting or waiting to obtain following way: passengers.
The expression “plying for hire” is not defined in the 1847 Avory J, referring to the judgment of Montague Smith J in Act or the 1869 Act and there has been a series of cases the earlier case of Allen v Tunbridge12 said: “As [the judge] said since the enactment of the statutes which have addressed in [that] case ‘plying for hire’ is very different from a customer the issue whether vehicles which were not licensed hackney going to a job-master to hire a carriage, and I think [counsel] carriages were nonetheless plying for hire and therefore was right in his argument in that case when he said ‘plying an offence was being committed. The Chief Magistrate for hire’ means soliciting custom without any previous helpfully sets out the authorities and summarises their contract.”13 effect in [paragraphs] [18] to [29] of her Decision. I do not propose to refer to all the authorities, but will only focus In Cogley v Sherwood14 the situation concerned booking on those cases from which some principles relevant to the desks at London airport where cars could be hired. The present case can be discerned. Many of the cases turn on service was advertised throughout the airport but there was their own particular facts. no direct access to those cars by members of the public, and there was no indication on the cars that they were available In his judgment those key cases were Sales v Lake5 , Allen v for hire or anything other than private vehicles. A conviction Tunbridge,6 Cogley v Sherwood7 and Rose v Welbeck Motors8 for unlawfully plying for hire was overturned by the High and: Court and the judgment was summarised and emphasised by Flaux LJ in the following manner 15: It is unnecessary to refer to the more recent cases since they can all be analysed as examples of the application to 17. Lord Parker CJ considered at 324 that: “today, as a the particular facts of the individual cases of the principle matter of common sense, I do not think that anyone would established by Cogley v Sherwood9 and Rose v Welbeck say that vehicles belonging to the many car hire concerns 10that to be plying for hire (a) the vehicle must be exhibited are plying for hire in the ordinary sense of the word”. Having or on view and (b) while so exhibited it is expressly or by reviewed earlier authorities, including Allen v Tunbridge 16, implication soliciting custom in the sense of inviting the the Lord Chief Justice said at 325-6: public to use the vehicle without a prior contract. (At para 25.) “In the ordinary way, therefore, I should, apart from authority, have felt that it was of the essence of plying for In Sales v Lake11 a hackney carriage licensed in a different hire that the vehicle in question should be on view, that district was used to pick up passengers in other areas. Those the owner or driver should expressly or impliedly invite the passengers had purchased tickets in advance and booked public to use it, and that the member of the public should be able to use that vehicle if he wanted to. Looked at in that 4 See paragraphs 9 to 12. way, it would matter not that the driver said: ‘Before you 5 [1922] 1 KB 553. hire my vehicle, you must take a ticket at the offi e,’ aliter, 6 (1871) LR 6 CP 481. 7 [1959] 2 QB 311. 12 (1871) LR 6 CP 481. 8 [1962] 1 WLR 1010. 13 Per Flaux LJ at paras 14 and 15. 9 [1959] 2 QB 311. 14 [1959] 2 QB 311. 10 [1962] 1 WLR 1010. 15 At paragraphs 17 to 20. 11 [1922] 1 KB 553. 16 (1871) LR 6 CP 481. 10 Taxi licensing: law and procedure update Title of the article / Type of article
if he said: ‘You cannot have my vehicle but if you go to the the case is a bus stand, but unfortunately it is never specified offi e you will be able to get a vehicle, not necessarily mine.’ whether this was actually a statutory bus stop) which was somewhere that passengers would congregate to board a 18. He then noted that some cases pointed in a different bus. When a bus arrived and wanted to turn round, the driver direction, but considered that it was unnecessary to go into moved the vehicle but then immediately returned to the them because, in all cases where it was held a carriage was same place. He was prosecuted for unlawfully plying for hire plying for hire, it was in fact there and on view. He continued: and acquitted. The prosecutor appealed and the High Court “For myself I think that it is of the essence of plying for hire overturned that decision, and remitted it to the magistrates that the carriage should be exhibited”. He considered that the to continue hearing the matter. As with Cogley v Sherwood,20 cars were not exhibited in this sense. The only cars on view Flaux LJ considered this judgment carefully in the following were at one terminal, “they did not appear to be for hire; they terms:21 appeared to be ordinary private cars with private chauffeurs”. 22. Rather surprisingly, on those facts, the magistrates 19. In his concurring judgment, Donovan J said at 329: found there was no case to answer in relation to an offence under section 7 of the 1869 Act. That decision was reversed The term [‘plying for hire’] does connote in my view some by the Divisional Court and the case was remitted to the exhibition of the vehicle to potential hirers as a vehicle magistrates with a direction that they should continue which may be hired. hearing the case. Lord Parker CJ again gave the lead judgment. He referred to and followed Cogley v Sherwood22 20. Salmon J, also concurring, said at 331: saying at 1014-5:
But for authority, I should have thought that a vehicle plies Again, in Cogley’s case this court held that it was essential for hire if the person in control of the vehicle exhibits the before one could say that a vehicle was plying for hire, first, vehicle and makes a present open offer to the public, an that it should be exhibited or be on view to the public, and offer which can be accepted, for example, by the member secondly, that it should while on view expressly or impliedly of the public stepping into the vehicle. solicit custom in the sense of inviting the public to use it. The fact that, if those conditions were proved, a ticket had He considered that it was quite wrong to conclude that a to be obtained from an offi e or a booking made other than car-hire service which was the modern equivalent of the job- through the driver was immaterial. It is right to say that a master in 1869 was plying for hire. He said at 331-2: further possible question, namely, what was to be the result if the obtaining of a ticket or a booking involved a vehicle I do not feel compelled by any authority to find that a other than that on view was left open. Reference, however, vehicle plies for hire unless it is exhibited. was made to Gilbert v McKay23 and in the argument to Foinett v Clarke24, which cases suggest that, at any rate in Flaux LJ concluded that the overall effect was: certain circumstances, that fact would not of itself prevent a finding that the vehicle in question was plying for hire. That case is thus clear authority for the proposition that it is of the essence of plying for hire that the vehicle in question That the vehicle in the present case was on exhibition in is exhibited with an express or implied invitation to hire it. the sense that it was on view to the public is undoubted. Nothing in Rose v Welbeck Motors,17 on which Mr Charles The real question, as it seems to me, is whether a prima Holland for [Reading BC] placed particular emphasis, facie case was made out that the vehicle in question was detracts from that proposition.18 impliedly inviting the public to use it. Whether in any case such a prima facie case is made out must, of course, depend Rose v Welbeck Motors19 concerned a red Renault Dauphine upon the exact circumstances, and I certainly do not intend (which at that time was as synonymous with a minicab as anything I say in this judgment to apply to any facts other a Toyota Prius is to a private hire vehicle today) with the than those here. What are the facts here? One starts with identity of the firm on the sides, together with a telephone the fact that this vehicle was of a distinctive appearance, number and a radio aerial. It was a vehicle which was clearly regarding its colour, its inscriptions, its equipment in the available for some form hire. This was parked for 50 minutes 20 [1959] 2 QB 311. at a location where buses turned around (it is referred to in 21 At paras 22 to 24. 17 [1962] 1 WLR 1010. 22 [1959] 2 QB 311. 18 At para 21. 23 [1944] 1 All ER 458. 19 [1962] 1 WLR 1010. 24 (1877) 41 JP 359. 11 Title of the article / Type of article Taxi licensing: law and procedure update
form of radio communication, and its type. Secondly — and Philip Kolvin QC for the respondent (Mr Ali) countered that this is equally important — it was standing with the driver by explaining that the appearance on the app did not identify at the steering wheel for some fifty minutes in a public a particular vehicle and did no more than demonstrate place on public view and at a place where buses turned that vehicles were potentially available for hire following round: in other words, at a place where many members of a booking being made via the operator through the app. the public would be getting off the buses and where many He also distinguished the case from Rose v Welbeck Motors members of the public would forgather to board the buses. 26because “here the waiting was of a completely different Moreover, when requested to leave, the driver drove away character. It was not waiting for a customer from the street to only to return immediately almost to the same place. get into the car, but waiting for the purpose of a private hire booking which would come exclusively via the Uber app.”27 23. The Lord Chief Justice then dealt with the argument on behalf of the defendant that the car was merely advertising Flaux LJ concluded that there was no plying for hire in this the owners: case. His decision (only edited for brevity) is as follows:28
“It is perfectly true, of course, that the inscriptions were 33. In my judgment, there was no unlawful plying for hire in advertising the owners, Welbeck Motors, Ltd., and also this case for a number of reasons. First, the mere depiction saying, ‘and if you ring up Welbeck 4440 you can have one of the respondent’s vehicle on the Uber app, without either of the vehicles that they hire known as a minicab.’ In my the vehicle or the driver being specifically identified or the judgment, however the inscriptions on and appearance customer using the app being able to select that vehicle, of the vehicle coupled with the place where it was on view is insufficient to establish exhibition of the vehicle in the and its conduct during the relevant period were saying sense in which that phrase is used by Lord Parker CJ in more than that. The vehicle was saying: ‘Not only do I,’ if formulating the two stage test for plying for hire in Cogley I may personify the vehicle, ‘recommend you to Welbeck v Sherwood 29and Rose v Welbeck30 . That requires not Motors, Ltd., where you can hire a minicab, but further I am just exhibition of the vehicle but its exhibition expressly or one of those minicabs and I am for hire.’” implicitly soliciting custom, inviting members of the public to hire the vehicle. 24. Winn J agreed and dealt with a short point of his own, which was that there was no difference as matter of law: 34. It seems to me that depiction of the vehicle on the app “…whether the vehicle was to be taken to be saying: ‘I am does not involve any exhibition of that kind, but is for the here available for you to step into and hire me as a cab,’ or assistance of the Uber customer using the app, who can whether it must be taken to be saying: ‘I am here available see that there are vehicles in the vicinity of the type he or to be hired by you conditional upon my owner’s approval she wishes to hire. I agree with Mr Kolvin QC that the app and his ordering me to take you where you want to go.’ is simply the use of modern technology to effect a similar … transaction to those which have been carried out by PHV At the very lowest, the evidence in the present case discloses operators over the telephone for many years. If I ring a behaviour and appearance on the part of this vehicle which minicab firm and ask for a car to come to my house within amounts to an invitation, ‘Get in touch one way or another five minutes and the operator says “I’ve got five cars with my owner and see whether he is willing for you to take round the corner from you. One of them will be with you me as a vehicle which you are hiring.’ in five minutes,” there is nothing in that transaction which amounts to plying for hire. As a matter of principle, I do not On the facts, the Chief Magistrate had found that there consider that the position should be different because the was no offence. In the High Court, Charles Holland for use of internet technology avoids the need for the phone the appellant (Reading Borough Council) argued that the call. appearance on the Uber app was the equivalent of a “for hire” sign on the vehicle and made it clear that the vehicle 35. Second, it does not seem to me that the position is was available for immediate hire, and the app simply different because, as between Uber and the driver, the facilitated that plying for hire. In particular “if exhibition of latter is a principal and Uber is an agent. Whether this the vehicle amounted to plying for hire, it made no difference agency analysis is correct has not been finally decided. that there was then a booking through the Uber app. That 26 [1962] 1 WLR 1010. was the modern equivalent to taking a ticket from the offi e 27 Per Flaux LJ at para 32. before getting in the cab which Lord Parker CJ said made no 28 Paragraphs 33 to 41. difference in Cogley v Sherwood”. 25 29 [1959] 2 QB 311. 25 Per Flaux LJ at para 30. 30 [1962] 1 WLR 1010. 12 Taxi licensing: law and procedure update Title of the article / Type of article
However, like the Chief Magistrate and contrary to Mr would not be plying for hire into the context of the Uber Holland’s submissions, I do not consider that it has any app, if approached in the street, the respondent would bearing on the issue in this case. On the findings she made have been saying: ‘You cannot have my vehicle, but if you as to how the Uber app works, the customer has to confirm register for the Uber app and make a booking on it, you will the booking after he or she is given the fare estimate and be able to get a vehicle, not necessarily mine.’ the driver in turn has to accept the booking before either of them knows the identity of the other and before the car Conclusion actually comes to the pick-up point. 40. In all the circumstances, the appeal must be dismissed.
. . . 41. I would answer the questions posed by the case stated as follows: 37. Whatever the correct contractual analysis, in my (1) No, because the identity of the vehicle could not be seen judgment it has no impact on the question we have from the App and the specific vehicle could not be booked; to decide. On any view, there is a pre-booking by the (2) No, because on the facts found the App merely informed customer, which is recorded by Uber as PHV operator, Uber customers who wished to book a private hire vehicle before the specific vehicle which will perform the job is that there were such vehicles in the vicinity; identified. This is all in accordance with the transaction (3) (a) and (b) No, in any event; being PHV business, not unlawful plying for hire. There (4) No. was no soliciting by the respondent without some prior booking, as he only proceeded to the pick-up point after the Holgate J agreed with that judgment. customer had confirmed the booking and the respondent as driver had accepted the job. Whenever any contract was Comment concluded, I have little doubt that this was not plying for On the basis of precedent, and on the facts of this particular hire, because on the facts found in this case, the customer case it is difficult to see how any other conclusion could have could not use the respondent’s car without making a prior been drawn. booking through the app. As with the charabanc in Sales v Lake31, the customer would make a booking to be picked A private hire operator can advertise their services anywhere up at a pre-arranged point. On the evidence in this case, all (see Windsor & Maidenhead Royal Borough Council v Khan (t/a the Uber app did was to facilitate that booking. Top Cabs) 34), and a private hire hiring can commence, travel and finish anywhere without any reference to the authority 38. This leads on to the third reason why this was not in whose area the Trinity of Licences (private hire operator, plying for hire, which is the character of the waiting. The private hire driver and private hire vehicle) were issued (see respondent was waiting in his vehicle until a customer Adur District Council v Fry 35 ). confirmed a booking on the Uber app and he accepted that booking. There was no question of his soliciting custom As the judgment makes clear, it is well established that for during the period of waiting. His vehicle did not advertise the offence of standing for hire to be committed the vehicle itself as available for hire nor did he do anything which must be exhibited to a prospective hirer, and be available for would have suggested to the public that he was available immediate hire. Had the decision been that the appearance for hire. Indeed, as the Chief Magistrate found, if a member on the Uber app amounted to an exhibition, not only would of the public had approached the vehicle and sought a private hire vehicles licensed by authorities other than the ride, the respondent would have refused to take such a one in whose area they were located be prohibited from passenger off the street without a prior booking through waiting for the next booking, any private hire vehicle would the Uber app. have been so prohibited. The logical consequence of that would be that every private hire vehicle would have to be 1. 39. The waiting here was of a completely different driving around whenever it was not hired. The environmental character to that in Rose v Welbeck32. Unlike in that case, and ecological impacts of that would clearly be horrendous. the respondent was not waiting to solicit custom from passing members of the public, but he was waiting for a However, this judgment does not mean that every private private hire booking via the Uber app. Putting the example hire vehicle can park with impunity. The obvious first given by Lord Parker CJ in Cogley v Sherwood33 of what question is whether the vehicle is parked lawfully, and there is no exemption from private hire vehicles from all normal 31 [1922] 1 KB 553. 32 [1962] 1 WLR 1010. 34 [1994] RTR 87. 33 [1959] 2 QB 311. 35 [1997] RTR 257. 13 Title of the article / Type of article Taxi licensing: law and procedure update parking restrictions. Secondly, the appearance of the vehicle (see Milton Keynes Borough Council v Barry 36 ), or arguably must be considered. For once, the paucity of signage on at places where people would anticipate vehicles being TfL licensed private hire vehicles actually assisted Mr Ali. available for immediate hire, eg, outside pubs, night clubs, The small roundel which TfL allows on the front and rear cinemas etc, then the conclusion might be different. windscreens of their private hire vehicles is very difficult for anybody to spot if they are not fully familiar with private As with every case concerning plying or standing for hire, hire licensing within London. Many local authorities require this turns entirely on its own particular facts. In the future, significant and obvious signage on their private hire vehicles if those facts were different, and it was clearly identifiable to identify them as such, to enable legitimate hirers to easily vehicle parked outside a busy pub at closing time, the court identify the vehicle that they have booked. Such a vehicle might legitimately come to a different conclusion. would have more similarity to the vehicle in Rose v Welbeck Motors than the vehicle in this case. Those who hoped that this case would lead to definitive definitions of plying and standing for hire will be disappointed. There is also the question of the location. In this case there was no suggestion that the vehicle was anywhere near a James Button CIoL hackney carriage stand, or anywhere where the public would Principal, James Button & Co Solicitors expect to find vehicles available for immediate hire. If that is different, and the vehicle is near a hackney carriage stand 36 Unreported, 3 July 1984. Zoo Licensing Yorkshire Wildlife Park - 4 & 5 September
This two day course, taking place at YWP on the 4 & 5 On Day two there is a more practical element of the course. September 2019, will focus on the licensing requirements The morning will be spent with staff from the zoo conducting a and exemptions to Zoo licensing. In addition there will be full mock zoo inspection with mock inspection forms. We extra input in relation to specific areas of animal welfare will have access to various species of animals and the expert licensing including performing animals and circuses. knowledge of the zoo staff. An outline of the day is below:
Day one focuses on zoo licensing procedure, applications, • Mock Zoo Inspection Introduction dispensations and exemptions and include: • Mock Zoo inspection with DEFRA inspector • Refusal to licence a zoo • When is a zoo not a zoo? • Dispensations and exemptions • Zoo Licensing Act 1981 • What to do when a zoo closes • Legislation overview • Appeal • Zoo Licensing Procedure • Fees • Application • Powers of entry • Licence Conditions • Appeals • Organising Inspections • Inspection debrief with DEFRA Inspector • Local Authority Zoos • Performing Animals and Circus animals Location • Legislation • Application Yorkshire Wildlife Park, Warning Tongue Lane, Bessacarr, • Powers of entry Old Cantley, Doncaster DN4 6TB • Enforcement Training Fees • New Circus Licensing legislation (England) Members Fee: £320.00 + VAT • Zoo Conservation work a general overview Non-Members Fee: £410.00 + VAT (The non-member rate will • Input from the Zoo on their conservation programme include complimentary individual membership at the appropriate level until 31st March 2020.)
14 Article Who saves the saviour? In today’s difficult business climate, the night-time economy can be an engine for growth, but to achieve that growth, says Jon Collins, we need to switch the conversation from counting costs to realising opportunities
The challenges facing retailers across the UK and their impact the consequences of the smoking ban and licensing reform). on our high streets are all too apparent. Estimates as to the However, once again, the hospitality sector was able to number of retail jobs lost in 2018 start at 80,000 and head step in to fill vacant sites, this time thanks to the significant north as retailers felt the impact of shifting consumer habits. expansion in the number of casual dining restaurants across Some shoppers simply stopped spending, nervous of the the UK as we Brits discovered a quasi-American love of eating economic outlook. Others shifted spending from “things” out. to “experiences” as they looked to prioritise holidays and leisure. And, of course, online shopping continued to take And now, it is the turn of some of those restaurant operators an increasing share of spend. Little wonder then that last to experience the pain. Witness the significant number year saw one casualty after another, from Toys R Us, Maplin of high-profile restaurant chains resorting to company and Poundworld through to House of Fraser, Mothercare and voluntary arrangements (CVAs) to close hundreds of outlets Carpetright. and lay off staff. It’s a route taken, no doubt after exhausting all the alternatives, by the likes of Byron, Jamie’s Italian, Local authorities, already dealing with the twin challenges Carluccio’s, Gourmet Burger Kitchen and Prezzo. of austerity and impending Brexit, are concerned as to how these closures have impacted and will impact their own town As the chart opposite shows, the last decade has seen centres. Empty units can suck the life out of a high street. unprecedented churn and change for the licensed hospitality Indicating failure, they are a turn off both for customers and sector with pubs, clubs and bars particularly hard hit. future investors. Although, interestingly, and contrary to the historic picture, wet-led venues such as pubs, clubs and bars actually tended Perhaps based on prior experience, a significant number of to outperform restaurants and food-led pubs last year. councils are pinning their hopes for an economic upturn (or at least economic resilience) on the night-time economy. Such While we do not see an inbuilt, structural demand for sites a view is evident from the research conducted last year by the in 2019 - as was the case during earlier challenging times for Portman Group and the Local Government Information Unit the high street - those hospitality businesses that have come (LGIU) which found that almost all councils (92%) believe through the last decade are still willing to invest. However, that the night-time economy will play an important role in this investment is going to be carefully considered, and will preventing the decline of high street retail. show an aversion to areas that appear to be hostile to the night-time economy or even simply ill prepared to support It’s a welcome statement of confidence in our hospitality new developments. Entrepreneurs and businesses will be sector, and the night-time economy in particular, but the looking for a sign that a well-managed, thriving night-time wider trading environment in 2019 is markedly different to economy is something to be welcomed. that of the early 1990s or even just a decade ago. When the UK economy slipped into recession during the early years At the very least, that means an absence of unnecessary of Sir John Major’s premiership, there was pent up demand barriers to business – which were often introduced in for sites (soon to be vacated by banks and shops) within the response to other pressures rightly or wrongly prioritised hospitality sector from a nightclub industry keen to move in over the need to support the night-time economy. to more prime positions on the high street and the imminent discovery and expansion of the UK bar industry. Financial pressures can prompt calls for authorities to introduce measures such as a tourism tax or late night levy Fast forward to 2008 and those same bar and club operators – increasing cost to business and disincentivising tourist were caught up in the economic fallout of the global financial spend. crisis (and had their own particular problems to handle in
15 Who saves the saviour?
Source: CGA Outlet Index June 2018, GB On Trade Universe & Structure:
Shifting circumstance can create fresh regulatory challenges. quarters of councils say they would welcome national level For example, the expected further increase in city centre policy to enable sharing of best practice and information. living as empty retail units are converted to residential That suggests to me an opportunity for the Institute to draw will inevitably create more noise complaints. The agent on our broad church and expert membership to create such of change principle might offer some comfort to existing guidance. operators but that is yet to be proven in practice. And what about businesses thinking to invest and create new venues? London looks to be leading the way, at least in terms of Will they risk that investment in an area that is likely to then recognising the value of having a night-time strategy, with hit them with costly additional work to address complaints the latest draft London Plan stating that: “Boroughs should from their new neighbours? develop a vision for the night-time economy, supporting its growth and diversification, in particular within strategic And, most importantly, an unpredictable regulatory areas of night-time activity, building on the Mayor’s Vision for environment is not going to prove attractive to investors. London as a 24-hour city”. Operators need to know they are valued as partners alongside their regulators and will not be blindsided by I would expect this will mean the increasing development unexpected enforcement. A particular concern here is the and adoption of such strategies over time across London, tendency in some areas to skip past the stepped approach with the idea then being picked up by other councils to enforcement set out as best practice in the s 182 Guidance across the UK. In developing a strategy, councils should be to the Licensing Act 2003. Immediate closure and summary encouraged to begin with dialogue and engagement, finding review can rapidly turn into a permanent closure as social out from local residents, businesses and regulatory partners media amplifies rumours and concerns to condemn a venue what they see as the vision for the night-time economy in unfairly. their area.
One key step councils could take to give businesses the After dialogue comes data crunching to understand what confidence to invest is to develop a night-time strategy. Again, space is used at present, what is available and what is offered. the Portman / LGIU research is informative – noting as it does The vision should then be about getting from the current to that while three quarters of councils see developing their a future offer that meets the needs of all partners without night-time economy as a key priority, only just over 1 in 5 has causing disorder or disturbance. Once that small task has a dedicated night-time economy strategy. Interestingly, three been completed, ways need to be found to shout about the
16 Who saves the saviour? resultant changes as those with the most negative view of the practice across the capital), I was encouraged to hear from night-time economy often have the least clear understanding the Lewisham representatives about their work in Catford. of what it can offer. Team Catford’s “Catford Conversation” is an excellent example of a community engagement, urban regeneration Issues impacting the night-time economy are many and and place-making programme. It has been designed to varied – from transport to the environment, commercial ensure that local people are given a voice as the council to creative. So a successful strategy should look to draw prepares a masterplan to regenerate the town centre. in multiple partners and build on existing policies – for example, cultural, environmental and transport strategies Team Catford speaks up for the community, champions and the statement of licensing policy. In tailoring the strategy local views and is encouraging everyone who lives, works, to fit local need, authorities should be encouraged to take socialises, commutes or runs a business to have their say as the widest possible view of their night-time economy. That Catford goes through its biggest change in decades. Central could mean the strategy incorporates elements such as the to this regeneration is the evolution of the late-night offer use of civic buildings and spaces at night, addressing social in Catford in a controlled manner, identifying underutilised exclusion through activities targeting vulnerable groups or spaces and opening them up for creative and cultural use, even offering rates reductions to attract particular employers street markets, youth initiatives and theatre. External (eg, younger entrepreneurs) or organisations. transport links are minimal so the focus is on understanding and seeking to meet residents’ needs. New opportunities for Once the strategy is in place, authorities will need late-night industries have been developed with the freedom mechanisms through which to take action and monitor to trade through to 6am tied to higher expectations in terms impact. Across the globe, cities are experimenting with new of operator standards. roles and structures to achieve this. Night czars or mayors, with a brief to engage with all relevant stakeholders, are This engaged and balanced approach should be ripe for increasingly prevalent from Paris and Budapest to London adoption more widely across the country. I am particularly and Nantes. Night-time managers are also growing in cities taken with Team Catford’s willingness to use the flexibility such as Aberdeen, Orlando and Pittsburgh, which recognise within the Licensing Act 2003 to attract investment and the value of having an individual working across multiple innovation while maintaining standards of operation. departments (often with a focus on safety). Cities such as Berlin, London and Amsterdam have established a council Given the challenges (disparate and related) that councils or commission to provide a forum for the discussion of the and operators face, a shared vision and clear strategy on how myriad evolving issues that impact on the shape and nature to achieve it are more important than ever. While London is of the night-time economy. likely to be first to provide evidence of how successful this new approach proves, it will not just be about the West End Interestingly, in San Francisco, the Entertainment but Barking, Bromley and beyond. That means the lessons Commission established in 2003 has looked to focus in on learned and approaches adopted will be relevant to all areas late-night transport – recognising the significant impact on when adapted to local circumstance. And having some form quality of life, economic vibrancy and employee satisfaction of forum, czar or simply a working group will provide the that comes from having a quick, reliable, safe and affordable vehicle for local level adaptation and adoption. way to get in and out of the centre (be that for work or play). All of this needs to be underpinned by a genuine and Almost all of these initiative have a common goal – to mutually respectful sense of partnership. It is encouraging protect and expand the night-time economy in a way that therefore that the Portman Group / LGIU research found that delights users and encourages investment while managing 8 out of 10 authorities recognised that partnership working the impact on emergency services and local residents. This is essential in supporting a vibrant night-time economy with being the case, councils in the UK are not short of inspiration local businesses (95%) and the police (93%) named as key as they seek to achieve the same themselves. And there partners. are numerous examples of great work already in place that, while stopping short of presenting a holistic strategy, are And yet, as was highlighted by Clare Eames of Poppleston successfully tackling one or more of the issues they face. Allen and Rebecca Cullum of Stonegate in their expert and informative session at last year’s National Training While speaking last year at a meeting of the London Night Conference, it is not always straightforward to maintain Time Borough Champions Network (an excellent initiative a partnership approach on the front line as competing chaired by the London Night Czar, with a goal to share best priorities, stretched resources and imperfect communication
17 Who saves the saviour? cloud the issue. The vast majority of IoL members will Operationally, for any authority wishing to support and recognise that driving true partnership, beyond the buzz expand the night-time economy in their area, such an word, is the most reliable way to create long-term sustainable approach can only be viewed as sensible. By removing solutions for the management of both individual premises barriers to growth while maintaining communication to nip and our town and city centres generally. Many of those issues in the bud, enforcement activity can be held back for same members will have examples of when and where that its proper place, as the last step in the regulatory process. partnership approach has been undermined. While the current economic malaise might seem like déjà During their session, Eames and Cullum underscored the vu for those of us around for more than a decade or two, this wisdom of a stepped approach to enforcement with lower time is different. The night-time economy can be an engine level, and often informal, early intervention being a simple for growth, but to achieve that growth we need to switch the way to avoid more complicated and expensive action at a later conversation in many areas from counting costs to realising date. Central to that approach, all agreed, was a commitment opportunities. Global and national good practice suggests to clear and consistent communication. In conclusion, the more formality (in policy and personnel) would be a good pair noted the central importance of establishing a mutually thing. And partnership, as ever, is the way to ensure that the respectful relationship between the regulator and operator. benefits, once achieved, are enjoyed for years to come. This would present multiple opportunities to take corrective action short of enforcement activity. Jon Collins Patron, Institute of Licensing
Professional Licensing Practitioners Qualification The training will focus on the practical issues that Delegates sitting and passing the exam on all a licensing practitioner will need to be aware of four days will be awarded the IoL accredited when dealing with the licensing areas covered Professional Licensing Practitioners Qualification. during the course (See Agenda for full details). In addition those delegates sitting and passing the exams on less than all four days will be The training is ideally suited to someone new to awarded the Licensing Practitioners Qualification licensing, or an experienced licensing practitioner related to the specific subject area(s) passed. who would like to increase or refresh their knowledge and expertise in any of the subject Locations & Dates matters. Swindon - April 2019 The training would be suitable for Council and Birmingham - May 2019 Police Licensing Offi ers, Councillors, Lawyers Manchester - June 2019 who advise licensing committees, managers Leeds - September 2019 of a licensing function and committee services London - September 2019 offi ers. Wales - October 2019
Each of the four days will finish with an exam to For more details and to book your place visit give delegates the option of sitting an exam in the www.instituteoflicensing.org/events subjects related to their current area of work or the delegates can just attend the training on each of the four days.
1818 Opinion In praise of cross-examination
Contrary to widespread misconception, cross-examination is permitted in licensing hearings and indeed should be positively encouraged, argues Gary Grant
In the late 19th century a promising young barrister from combative in nature so as to encourage participation in the Birkenhead, FE Smith, rose to cross-examine a young boy licensing process by residents and other persons who may in the witness stand. The boy had, tragically, been run over be put off from ever getting involved if they fear they will be by a tram operated by FE Smith’s client, the tram company. grilled like a hardened villain in the Old Bailey. As a result, the boy’s right arm was partially paralysed. He would never regain full use of it. The boy’s claim for personal But that general rule is not the end of the matter. Licensing injury damages was water-tight. The damages would be sub-committees can, and in appropriate cases should, make massive. FE Smith only asked two questions of the boy. His exceptions to this rule and permit cross-examination if that first question was sympathetic in tone: “You poor boy, can is the best way to serve the interests of justice. Regulation 23 you show us how high you can lift your arm?” The boy winced specifically provides that discretion to members: in pain as he struggled to raise his right arm just above waist level. Exhausted by the effort the boy’s useless, crippled arm Procedure at hearing flopped back to his side. The barrister’s second, and final, 23. A hearing shall take the form of a discussion led by the question was this: “Now show us how high you could lift your authority and cross-examination shall not be permitted arm before the accident?” Eager to oblige, the boy’s right arm unless the authority considers that cross-examination is shot right up vertically into the air high above his head. “No required for it to consider the representations, application more questions” Smith said as he sat down, case won. or notice as the case may require.
FE Smith went on to become the Attorney-General, Lord It is often said by sub-committee members and their High Chancellor of Great Britain, and was created the 1st Earl legal advisors that although “questions in clarification” are of Birkenhead in 1922. His best friend, Winston Churchill, permitted, cross-examination is not. Now entering my 25th worshipped him. Another friend, the newspaper proprietor year at the Bar, I confess that I still do not know the difference. Lord Beaverbrook, described him simply as “the cleverest Questions to clarify a point are one of the principal aims of man in the kingdom”. The historian George Dangerfield cross-examination. Some members fear that if they dare to called him “without question the most fascinating creature permit a single question in “cross-examination” then their of his times”. He drunk himself to an early death aged just 58. proceedings will soon degenerate into a shouting match with advocates bullying witnesses, jabbing their fingers towards While not every advocate who appears before a licensing them as they condemn them as liars. Inevitably the witness, sub-committee will possess all the cross-examination skills who was just turning up to complain about some litter left of FE Smith, it is undoubtedly the case that a well-focused by the local kebab shop, will collapse into emotional heap, cross-examination can, in an appropriate case, hugely assist wrecked and ruined by the forensic experience. a tribunal of fact in reaching a proper and fair decision. The American jurist John H Wigmore observed that: But that is not what cross-examination is about. At least not one worthy of the name. As a pupil barrister I was wisely Cross-examination is the greatest legal engine ever advised that “to cross-examine well, one does not need to invented for the discovery of truth. You can do anything examine crossly”. The main purpose of a cross-examination with a bayonet except sit on it. In the same way, a lawyer is to elicit essential new information that has not yet come can do anything with cross-examination if he is skilful out of a witness, or to properly challenge the reliability of enough not to impale his own cause upon it. evidence that has come out by reference to other known facts, reason or plain old common-sense. It also permits a In licensing hearings before council sub-committees, as is witness, in fairness to them, to reply to suggestions that may well known, the general rule is that “cross-examination shall run counter to their own evidence (known as “putting your not be permitted”: see regulation 23 of the Licensing Act 2003 case”). (Hearings) Regulations 2005. This flows from Parliament’s original intention that modern licensing hearings should What tribunal would not be assisted by that process? After be in the form of a “discussion”, more inquisitorial than all, licensing decisions, like all judgement calls, are only as
19 Opinion good as the facts upon which they are based. As the great of passing the challenge (hence the reason experienced economist John Maynard Keynes wryly observed: “When advocates will often decline the opportunity to cross- the facts change I change my mind; what do you do sir?” The examine a plainly honest and reliable witness before a sub- quality of that evidence is often best tested by skilful cross- committee). examination or questioning (and to repeat, they amount to the same thing). The sounder the evidence, the better So when an advocate asks a sub-committee to ask a the decision is likely to be. On the other hand, as computer few questions in cross-examination, members would be scientists would say: “GIGO” - garbage in, garbage out. well-advised not to refuse the request automatically but to consider it on its merits. After all, should the case be A good cross-examination may fire questions like a torpedo considered on appeal, then the Magistrates’ Court will have to the heart of the case. Its effect should be more reminiscent the benefit of seeing those same witnesses cross-examined of a high-precision sniper shot than a blunder-buss. A scalpel at length if required. Why should sub-committees routinely not a machete. It is best done firmly, politely, succinctly and deprive themselves of the same advantage? straightforwardly. It is not intended to intimidate or bully a witness. Members should always intervene to protect a Gary Grant witness if the advocate steps beyond what is proper or if Barrister, Francis Taylor Building the questions are unhelpful in deciding the issues in any particular case. No truthful and accurate witness will ever fail under the testing scrutiny of a cross-examination. Indeed such a witness’s evidence is often strengthened as a result
Summer Training Conference 19 June 2019 Oxford
The Institute’s Summer Training Conference and the impact of forthcoming changes and recent (previously the National Training Day) will return to case law. Oxford for 2019. Full details of the agenda and training fees can be The Summer Training Conference will take place found in our e-news our Licensing Flash emails and once again at The Oxford Belfry Hotel, which is on our website www.instituteoflicensing.org conveniently located near the M40 motorway. There is a residential option for this event for the The aim of the training day is to provide a valuable night of 18 June. Residential places are limited so learning and discussion opportunity for licensing book now. practitioners to increase understanding and to promote discussion in relation to the subject areas
2020 The interested party For residents the evidence does not always Stack up The views of residents can be as expert as those of any professional witness, argues Richard Brown
“I think that the people of analysis of the independent expert evidence constituted this country have had enough a significant proportion of her judgment. One cannot help of experts.” Rt. Hon. Michael but form the impression that the District Judge would be Gove MP. tempted, in this context at least, to see perspicacity in Mr Gove’s famous quote. When the dust settles on Brexit, and the machinations and The District Judge in Stack demurred from giving a root motivations of the protagonists and branch exposition of the role and responsibilities of are dissected by historians, it independent expert witnesses, but did nevertheless make is likely that Michael Gove’s some interesting comments of wider applicability during the (in)famous prognostication in course of the judgment: 2016 will feature prominently for those seeking a hubristic symbol for the folly they feel is 6. The purpose of the Court hearing expert or “skilled” about to befall the nation. In fact, Mr Gove’s soundbite was evidence is to assist the Court to determine matters about itself taken out of context – what he actually said, parcelled which it cannot be expected to possess an appropriate up by interruptions from his interlocutor, was “I think that degree of knowledge or understanding to otherwise do the people of this country have had enough of experts so. The evidence should be relevant to the issues the court from organisations with acronyms saying that they know has to determine and required to assist the court in making is (sic) best and getting consistently wrong, because these that determination. Such evidence will be used as part people are the same ones who got (sic) consistently wrong.” of the evidential picture and evaluation of the case as a Nevertheless, in keeping with the times, it is not that which is whole. Given the nature of skilled or expert evidence, it will said that matters, but that which is remembered. often form a significant part of that evidential picture and evaluation process. Anyhow, Mr Gove’s infelicity popped into my mind during an interesting talk at the Institute of Licensing’s Annual Training The role of experts is of professional interest and relevance Conference last November. Charles Holland was dissecting to everyone involved in licensing. Why? Because the s 182 a Licensing Act 2003 appeal in respect of a premises to be Guidance says so3 (my emphasis): known as Stack, in which they had acted for different parties.1 The talk provided a companion piece to an article by Charles Each responsible authority will be an expert in their in the edition of the Journal published to coincide with the respective field, and in some cases it is likely that a conference. The talk and article covered inter alia the vexed particular responsible authority will be the licensing issue of experts in licensing applications and appeals – or, authority’s main source of advice in relation to a particular more specifically, independent expert witnesses. Charles licensing objective. helpfully provided a link to the judgment, which I thought I could usefully skim read for the gist in between sessions. I In fact, the role of the police was elevated in previous was soon disabused of that notion as I scrolled through the iterations of the Guidance to that of a kind of omniscient first few pages, and 133 pages later I came to the end. It is an sage, in the much-criticised section which has now been extraordinarily detailed judgment2 and covers a great deal deleted but which directed licensing authorities to “accept more than expert witnesses, although the District Judge’s all reasonable and proportionate objections from the police”. It is also relevant to residents. I often seek in my role 1 Endless Stretch Limited v Newcastle City Council and Danieli representing residents to elevate them to the status of de Holdings Limited, Newcastle-upon-Tyne Magistrates’ Court, facto experts at licensing sub-committee hearings. Not unreported. technical experts with acronyms after their names, perhaps, 2 https://docs.wixstatic.com/ ugd/241720_7c6a8499d29b4b629b1943bf4aa94356.pdf 3 Section 182 Guidance para 9.12. 21 Title of the article / Type of article The interested party but experts at what actually goes on in their streets and particularly galling if a subjective opinion is being given – and neighbourhoods on a day to day (or night to night) basis. especially when presented as fact and / or arguably out with Their “expertise” is in how noise actually does or is likely to the area of expertise. Sometimes a report contains sections in the future emanate from the beer garden at the rear of which would not look out of place in an applicant’s skeleton the premises; what time their children are woken up; what argument or pre-hearing submissions. effect customers leaving the premises late at night will have on them. This evidence, appropriately scrutinised, can often A typical issue which illustrates the difficulty for a licensing be of more value to a licensing sub-committee than an expert sub-committee in determining whose evidence it prefers is report forecasting what is likely to happen or analysing from whether there will be noise on dispersal. An independent an academic perspective what did happen, based on what expert witness may say that noise levels are masked by noise is inevitably a snapshot from the short time the author will on street, eg, from traffic, and so extending the hours will not have spent at the premises and vicinity. This is why it is add to noise levels and will not therefore add to nuisance. important for good and strong decision-making that these Presented as expert evidence this can be persuasive, yet it resident “experts” are encouraged to put forward their views often conflicts with residents’ lived experience and anecdotal and contribute fully at hearings. They can fill the contextual evidence to the contrary – that people noise or the slamming gap which can be missing from independent expert witnesses of a door, even if in short bursts (in fact, especially if in short or from responsible authorities who can only be guided by bursts), wakes them up when the “normal” street noise, eg, information they have at their disposal, eg, reported crimes, traffic, does n t. or recorded noise complaints. Sometimes this does not reflect the situation “on the ground”. This is where the acuity of a licensing sub-committee is put to the test. How to plough through conflicting evidence? The points made by the District Judge in Stack apply equally How to reconcile the inherent paradox of preferring the to the evidence of residents – in fact, arguably more so. The experiences of “non-experts” to the evidence of “experts”? s 182 Guidance and the case law are replete with references The answer, or at least a strong steer to and succour for a to the nature of licensing authority decision-making and the sub-committee which has deep sympathy for what residents importance of the views of residents. The oft-quoted section report as their lived experiences, can be found in the case of the Court of Appeal’s judgment in Hope and Glory4 that the law. The ridicule thrown the way of Mr Gove was of course decision-making of the licensing authority is the “exercise of predicated on this dissonance: who needs to listen to experts? a power delegated by the people as a whole to decide what Yet this difficulty is at the heart of licensing. The decision- the public interest requires” is one of the touchstones of making process is, again as per Hope and Glory, “essentially licensing law. The s 182 Guidance echoes this5 (my emphasis): a matter of judgement rather than a matter of pure fact”. 6 Decisions “involve an evaluation of what is to be regarded In determining the application with a view to promoting as reasonably acceptable in the particular location”.7 Who the licensing objectives in the overall interests of the knows the location best? Those who live there, or those community… who visit for a snapshot? I try to emphasis these points to residents when I advise them. I am sometimes asked by Of course, expert witness reports usually come with a level residents: “how many objections do we need to get them of experience, relevant qualifications and technical expertise to listen?”; “how many people need to attend the hearing?”; which a resident simply cannot match. On the face of it, “does it matter that here are more representations in support expert reports provide objective evidence; residents provide of the premises than in support of the review?” subjective evidence. But it is rarely that binary. I have seen many expert reports and it is quite clear that on occasion My answer is always the same: licensing is not (or should the line can seem blurred between true independence, not be) a numbers game. It is not a matter of “they who shout and being little more than a mouthpiece for the applicant. loudest”. It is the content of representations that matters. This can often irritate residents more than anything else – “Hearsay” which can be objectively tested is capable of residents can feel aff onted that an individual with acronyms constituting powerful evidence, as in Marathon8 where after their name (one of the fabled “experts” who were in focused and specific evidence from a local resident which Michael Gove’s sights) purports to know more about their could be described as “expert”, given that he lived adjacent neighbourhood than they do, often on the somewhat flimsy 6 R (Hope and Glory Public House Limited) v City of Westminster basis of a single visit on an unrepresentative evening. It is Magistrates’ Court [2011] EWCA Civ 31, para 42. 4 R (Hope and Glory Public House Limited) v City of Westminster 7 Ibid. Magistrates’ Court [2011] EWCA Civ 31, para 41. 8 Marathon Restaurant v London Borough of Camden [2011] EWHC 5 Section 182 Guidance para 9.38. 1339 (Admin). 22 The interested party Title of the article / Type of article and actually experienced the nuisance, was key to the full, contextualised picture of the likelihood of an application judgment: impacting on the licensing objectives. But in my submission, it can usually only augment, not replace or supersede, Had the hearsay been broad in scope, difficult to isolate, residents’ considered, fair, specific and properly made vague or shifting in type, and as a consequence difficult representations, even if “hearsay”. Where such evidence or impossible to confront there might be some force in the conflicts, a licensing authority should consider very carefully Appellant’s submissions…The DJ used it as he was entitled to which expert evidence they prefer. do in setting the context of the background upon which he was to base his conclusions. Richard Brown MIoL Solicitor, Licensing Advice Service, Westminster CAB This does not seek to diminish the value of independent expert evidence of the type critiqued in Stack. This evidence, of course, has an important place in licensing and can play a valuable part in assisting a licensing authority in gaining a
17 - 21 JUNE 2019 Get involved and showcase your organisation
23 2323 Article Rethinking Welsh taxi licensing Wales is currently engaged in a major review of taxi licensing which could see some radical reforms, as Tara O’Leary explains
In December 2018 the Welsh Government published Historically, there has been a degree of confusion about Improving Public Transport: A Welsh Government White whether or not taxi and PHV licensing had been devolved to Paper on proposals to legislate for reforming the planning the National Assembly for Wales (the Assembly) under the and delivery of local bus services and licensing of taxis and Government of Wales Act 2006. 2 private hire vehicles and launched an accompanying public consultation. 1 The White Paper sets out extensive proposals The Commission on Devolution in Wales, known as the Silk for reform of taxi and private hire licensing in Wales, which Commission, was established in 2011 with a remit to review are likely to interest readers of the Journal from both sides “the powers of the National Assembly for Wales … and to of the border. recommend modifications to the present constitutional arrangements that would enable the United Kingdom The most radical proposal recommends the abolition of Parliament and the National Assembly for Wales to better local authority licensing powers, to be replaced by a single, serve the people of Wales”. In its final report of March 2014 it centralised Welsh national licensing authority: the Joint came to the conclusion that taxi and private hire regulation Transport Authority (JTA), which would also regulate other had not yet devolved, but supported a recommendation that forms of public transport. The purpose of the JTA for taxis and arrangements were now made to do so. 3 private hire vehicles (PHVs) would be to create a standardised licensing area encompassing all of Wales, and to streamline In May 2012, when the Law Commission published its enforcement and information-sharing. The White Paper also consultation paper, Reforming the law of taxi and private puts forward three other key proposals: hire services (Consultation Paper No 203), it had stated that regulatory powers in this field had already been devolved to 1. Introducing national standards to eliminate or reduce the Assembly. However by May 2014, when it published its existing variations between the twenty two local authority final report and draft bill, Taxi and Private Hire Services (Law districts in Wales. Com No. 347), the Law Commission had changed its position 2. Strengthening powers to take enforcement action and proceeded on the assumption that powers had not against vehicles operating “out-of-area”. devolved, presumably having considered the findings of the 3. Clarifying and improving powers to share relevant Silk Commission.4 safeguarding information, possibly by creating a Welsh database to track refusals, suspensions and revocations. The UK government accepted the Silk recommendations on devolution of taxi and private hire licensing in February The White Paper thus represents the most far-reaching 2015, 5 pointing out that the Welsh Government was by then attempt to date to implement some of the Law Commission’s responsible for confirming any byelaws applicable to taxis recommendations from 2014, and in some respects goes and PHVs made by Welsh local authorities. Those authorities beyond the proposals recently made by the Task and Finish set their own policies and standards for licensing taxis and Group in September 2018. The consultation therefore offers private hire vehicles, informed by the Best Practice Guidance practitioners an important opportunity to comment (again) published by the (English) Department for Transport. on the shape of licensing law to come. The closing date for submissions is 27 March 2019. 2 See Matt Lewin, “Devolving taxi and private hire vehicle licensing powers to Wales”, Journal of Licensing Issue 13, November 2015. Background: taxis and PHV licensing in 3 See paragraphs 7.2.17 and 7.3.16: https://webarchive. Wales nationalarchives.gov.uk/20140605075522/http:// Taxi and PHV licensing in Wales is currently regulated by the commissionondevolutioninwales.independent.gov.uk/ same legislation which applies in England: namely, the Town files/2014/03/Empowerment-Responsibility-Legislative-Powers-to- Police Clauses Act 1847 in respect of hackney carriages, and strengthen-Wales.pdf the Local Government (Miscellaneous Provisions) Act 1976 4 https://www.lawcom.gov.uk/project/taxi-and-private-hire- (LGMPA 1976) in respect of PHVs. services/ 5 HM Government, “Powers for a purpose: towards a lasting 1 https://beta.gov.wales/improving-public-transport devolution settlement for Wales”, February 2015 para. 2.5.16 24 Rethinking Welsh taxi licensing Title of the article / Type of article
The matter has now been clarified and given some finality light of the introduction of national standards. by the Wales Act 2017. With effect from 1 April 2018, the • Permit local authorities to enforce against vehicles, 2017 Act inserts a new section 108A and Schedule 7A into drivers and operators licensed in other licensing areas the Government of Wales Act 2006. Although Schedule 7A (again, thanks to national standards); and lists matters which remain reserved to Westminster, para. • Establish a statutory requirement in primary legislation 116 creates an express exception (and thereby devolves for licensing authorities to establish arrangements competence to the Welsh Ministers) for “Licensing of taxis, and procedures for co-operating, including on “cross- taxi drivers, private hire vehicles, private hire vehicle drivers border” enforcement cases. and private hire vehicle operators (but not enforcement by means of penalty points)”. It appears that these views have evolved to some degree in light of the Law Commission’s final report and draft bill Section 28 of the 2017 Act also amended ss 10 and 13 of of May 2014, as well as the limited changes made by the the Transport Act 1985, giving the Welsh Ministers executive Deregulation Act 2015. competence to make certain regulations relating to taxis. In June 2017 the Welsh Government launched its own Curiously however, competence for “public service vehicle consultation on Taxi and private hire vehicle licensing in operator licensing” remains a reserved matter: see para. 113 Wales, in anticipation of the planned devolution of licensing of Schedule 7A. Therefore this area does not form part of the powers.7 This had the stated aim of reconsidering the Law current consultation. Commission’s final recommendations for the purpose of bringing new arrangements into effect in Wales. Most notably Previous consultations it re-consulted on the possibility of removing the distinction The Welsh Government first gave some indication of its between taxis and PHVs: views on the fitness of the existing system in 2012, when it submitted a formal response to the Law Commission 19 As highlighted in the Law Commission’s report, a consultation on taxi and PHV licensing.6 Intriguingly, at that number of persuasive arguments were advanced in favour time it appeared to support proposals to remove the “two- of removing the distinction between taxis and private tier” distinction between taxis plying for hire and PHVs. Its hire vehicles. There is recognition that the public does not submissions said: understand the distinction and advancement in technology means that a booking for a journey can be made within The distinction between taxis and PHVs is meaningless to minutes of the journey taking place. Moving to a single tier consumers. Retaining a two-tier system would not in itself regime can also better simplify licensing arrangements, the result in extra confusion for consumers, but the review setting of national standards whilst making enforcement provides an opportunity for regulators to take a decision more straightforward. that would help to simplify the industry for consumers. A single-tier system would be preferable. The existence of 20. In London for example, the distinction between the taxi a two-tier system appears to be a factor more of the age that can be hailed on the street and private hire vehicles of the extant legislation than any particular merits that is perhaps more understood, with London taxis providing system may have. the convenience of immediate hire using fares that are regulated. There were also indications within that response that the Welsh Government supported proposals to: 21. Moving to a single tier system could however, combine the characteristics of both taxis and private hire vehicles, • Introduce national safety standards for taxi and private enabling prebooked and “there and then” hires both hire services, replacing the local standards which have operating under a regulated fares model. seen requirements vary from district to district. • Specify the new national standards for drivers within With the benefit of hindsight, it is interesting to see that primary legislation, including the requirement that s / he this consultation proceeded on the assumption that local must be a “fit and proper” person, to ensure common authorities would remain responsible for licensing functions, standards throughout the country. with no discussion of the possible centralisation of services. • Remove restrictions on “cross-border” operations for Otherwise the consultation again focused on national PHVs, on the basis they would no longer be necessary in standards to be set by the Welsh Ministers, with the goal of
6 http://www.lawcom.gov.uk/app/uploads/2015/06/ 7 https://beta.gov.wales/taxi-and-private-hire-vehicle-licensing- TPHV_331_-_Welsh_Government_response.pdf wales 25 Title of the article / Type of article Rethinking Welsh taxi licensing making it easier for the trade to operate “out of area” on the Now we have the White Paper, launched in order “to seek one hand, and strengthening local authority enforcement views on the Welsh Government legislative proposals for powers in “cross border” cases on the other. reforming … the licensing of taxis and other private hire vehicles”, with the explicit intention of modernising a system The Consultation Outcome Report, published in January which it considers no longer fit for purpose. It aims to address 2018, found that the largest proportion of responses (45%) three key identified problems: favoured maintaining the distinction between taxis and PHVs. Unsurprisingly, it seems many of these respondents • Inconsistent licensing standards between districts, were drivers, whereas those in favour of removing the with different costs for operators and variable qualify and distinction (39%) were mainly public authorities. The report safety standards for passengers. noted the submissions made by the Institute of Licensing’s • The absence of a statutory enforcement mechanism Taxi Consultation Panel, the group responsible for the to deal with “cross border” operations. national survey in 2010, which favoured a simplified single- • Difficulties in sharing safeguarding information tier system. Most respondents supported the introduction of amongst local authorities, which impedes enforcement national standards, although many wanted to restrict cross- against drivers licensed in one area and working in border working, particularly drivers in Cardiff who worried another. about vehicles from other districts operating in the area and undercutting earnings. These issues echo most of the recommendations made by the Law Commission and the group as well as the Welsh Subsequently, in September 2018 the Task and Finish Government’s own previous position. Curiously, however, Group published its report on Taxi and private hire vehicle there are no further references to removal of the “two-tier” licensing: steps towards a safer and more robust system8 and system, and thus it appears this recommendation has now on 13 November 2018 a debate on the Report took place in been quietly shelved. the House of Commons. The group’s recommendations were largely focused upon improving safety, calling for “urgent” There are four key proposals. revision of existing legislation “to provide a safe, clear and up to date structure that can effectively regulate the two- Proposal One: Conferring a power on the Welsh Ministers to tier trade as it is now.” The group recommended legislating create national standards, to which the JTA or local authority for national minimum standards and urgent updating of the must have regard when issuing licences. All taxis and PHVs (2010) Best Practice Guidelines; the introduction of licensing would have to meet these standards, which would be set authority powers to enforce against “cross border” taxis out in Regulations (and which would themselves be subject and PHVs or a requirement that all journeys either start or to further consultation). The consultation invites comments end within the licensing area; the introduction of statutory on matters to be included and excluded from national definitions of “playing for hire” and “pre-booking”; and the standards, and practical obstacles which may arise in setting use of licensing conditions to require drivers to comply with common standards, amongst other matters. requests from compliance offi ers in other local authority districts; and several other measures designed to improve Proposal Two: Amending ss 60 and 61 LGMPA 1976 to safety.9 allow the JTA or local authorities to suspend or revoke a licence relating to any vehicle operating in its area, ie, even if The group also made no recommendations about licensed by another local authority. This measure is intended centralisation of licensing powers, and it did not recommend to permit enforcement where “borders have been eroded by removal of the “two-tier” system. Rather, its proposed technological advancement”, on the basis that “there is no definitions of “plying for hire” and “pre-booking” were good reason why a local authority should not be able to take expressly intended to maintain and strengthen the existing action against any taxi or PHV operating in its area”. divide. However it is also proposed “to enable a local authority or What is being proposed? JTA to issue a lesser sanction to any vehicle operating in its area”. It is unclear what form of lesser sanction is anticipated 8 https://assets.publishing.service.gov.uk/government/uploads/ here (eg, a fine?); whether only a sanction short of suspension system/uploads/attachment_data/file/745516/taxi-and-phv- or revocation would be permitted (or if lesser sanctions working-group-report.pdf would be one of a range of enforcement options available); 9 See James Button, “Taxi and private hire vehicle licensing – and what the objective or justification for a lesser sanction steps towards a safer and more robust system”, Journal of Licensing would be. This proposal will need to be considered carefully Issue 22, November 2018. 26 Rethinking Welsh taxi licensing Title of the article / Type of article alongside changes made under Proposal Three (below): what Proposal Four: Creating the JTA to redirect all existing taxi will be the arrangements for the “home” authority to be kept and PHV licensing functions away from local authorities. This informed of enforcement action taken against one of their would include licenssing, fee and fare-setting, enforcement, drivers by another district? Moreover, will the “full” sanction hearing appeals arising from licensing decisions, of suspension / revocation remain available to the “home” prosecutions and deciding matters such as whether to apply licensing authority if another district has already imposed a quantity controls to taxis. “lesser” sanction? The given rationale for this proposal is simply that These proposals would maintain the present “immediacy” centralisation represents the best option for solving the three provisions which defer the effect of any decision to suspend key identified problems and implementing Proposals 1-3. No or revoke for 21 days, unless it is in the interests of public explanation is given for the genesis of this idea, which was not safety to suspend / revoke immediately.10 It is not clear mooted within the Welsh Government’s 2017 consultation. whether the White Paper intends to uphold “immediacy” The Law Commission made no recommendation for provisions only in respect of drivers’ licences (as it only centralisation of licensing functions, and the Task and Finish refers to the sections of the LGMPA which deal with drivers), Group limited itself to a proposal that metropolitan districts in but presumably vehicle and operators’ licences will also be large cities could emulate London by combining themselves considered. into one licensing area. The White Paper is therefore more ambitious than previous projects in its willingness to shake Proposal Three: Imposing a duty on the Welsh Ministers up the fundamental structure of licensing. Yet it is scant on to create a database or make other information-sharing any details of the structure, form and funding arrangements arrangements to ensure that relevant information can be for the proposed JTA, and offers no analysis of how it might shared for the purposes of safeguarding. There is currently no impact (positively or negatively) local authorities’ capacity legal requirement for local authorities to share information and expertise to deal with their other licensing functions, with one another to assist their decision-making on issues particularly premises licensing under the 2003 Act. such as historic refusals, suspensions or revocations of drivers’ licences. Importantly, it is unclear whether by “hearing appeals arising from licensing decisions”, the JTA might convene A precedent for this type of mechanism is the database an internal panel or adjudicator to replace the Magistrates’ of rogue landlords and property agents, created for local Courts as the primary forum of appeal. Any such mechanism housing authorities in England under the Housing and would presumably need to have further rights of appeal to Planning Act 2016.11 It is intended to allow authorities which the courts, although this might limit the volume of cases enforce HMO (house in multiple occupation), selective and which are ultimately litigated. additional licensing regimes to keep track of and share information about landlords and agents who have been Although the White Paper’s preferred option is to centralise convicted of housing management offences, “especially licensing within the JTA alongside implementation of those operating across council boundaries”. The database Proposals 1-3, the consultation also seeks views on the was opened around April 2018, although media reports implementation of Proposals 1–3 without the creation of have indicated that it was still empty as recently as last the JTA as a delivery vehicle. This would involve legislation October.12 The Mayor of London also operates a “Rogue for national standards to be implemented and enforced by Landlord Checker”, in which all London councils voluntarily local authorities, and creating a mechanism by which local participate.13 authorities can share relevant information.
Many questions arise from this White Paper: those responding to the consultation will no doubt wish to offer 10 Sections 61(2A), (2B) and 77 LGMPA 1976 read together with s answers. Whatever else may be said however, no one is likely 300 of the Public Health Act 1936. to argue that reform in this sector has been rushed or under- 11 See Part 2, Chapter 3 of the 2016 Act, and Statutory Guidance for considered. Local Housing Authorities of April 2018: https://assets.publishing. service.gov.uk/government/uploads/system/uploads/attachment_ Tara O’Leary data/file/697637/Database_of_rogue_landlords_statutory_ Barrister, Cornerstone Barristers guidance.pdf#page=9&zoom=100,0,97 12 https://www.theguardian.com/business/2018/oct/24/ government-policing-of-rogue-landlords-labelled-pathetic 13 https://www.london.gov.uk/rogue-landlord-checker 27 IoL news update Institute of Licensing News Membership – it’s time to renew since. He has led the organisation in his role as National Chair Our membership year comes to a close on 31 March, and for the last 12 years. members will then be invited to renew. The online renewal function will go live on 1 April, at which point existing This dedication and commitment is exactly what the award members with full year memberships will be able to renew was established for. online by logging in and going to “Manage Account” and following the instructions under “Renew Membership”. On receiving the award, Stephen said: “Jeremy Allen was a strong supporter of National Pubwatch and I am honoured The IoL team are keen to help and can be contacted via to receive this award in his name. It means a great deal to me [email protected] We will be contacting to have the work of National Pubwatch recognised by such a all members who have signed up for direct debit as well prestigious organisation as the Institute of Licensing.” as members who joined part way through the previous membership year to assist with the renewal process. Nominations are by third party only. Other nominees and finalists for the Jeremy Allen Award 2018 were: National Training Conference 2018 It was great to see so many of you at the NTC last year. • Councillor Alan Bolshaw, City of Wolverhampton Once again this proved to be a sell-out event with over 350 Council (Finalist) delegates, and more than 70 sessions presented by 90- • PC Jason Hitchcock, Metropolitan Police (Finalist) plus speakers! A packed programme delivered a fantastic • Myles Bebbington, Huntingdonshire District Council range of information, opinions, workshops and discussions • Daniel Power, London Borough of Lewisham on all areas of licensing, and the feedback so far has been • Victoria Henley, North East Lincolnshire Council outstanding. As always, we are so grateful to all our speakers • PC Steve Pellow, Metropolitan Police and sponsors who make this event a success year on year, • Sue Abbott-Smith, Cornwall Council and to all those who attended – some of you are very familiar • Bob Patterson, West Yorkshire Police with the event, while others counted the NTC as their first • PC Neil Parnham, Metropolitan Police licensing conference experience. We are delighted to continue this award with Poppleston We return to the Crowne Plaza in Stratford for this year’s Allen and look forward to reviewing nominations for the 2019 event which will be held from 20-22 November. Planning is award. The nomination period opens on 3 June. already underway to ensure that the event continues to be the essential licensing conference of the year and we are Fellowship award looking forward to seeing new and familiar faces. In addition to the Jeremy Allen award, the IoL will consider candidates for Fellowship, which is an award level The Jeremy Allen Award 2018 membership. The Jeremy Allen Award is an annual recognition awarded jointly by the Institute of Licensing and Poppleston Allen Fellowship is awarded, following nomination by two Solicitors to celebrate excellence in licensing and related members of the Institute, to an individual where it can be fields and to award those practitioners who “go the extra demonstrated to the satisfaction of the Institute’s Membership mile”. and Qualifications Committee that the individual:
At last year’s NTC, we were delighted to present the • is a member of the Institute or meets the criteria for 2018 Jeremy Allen Award to Stephen Baker, chairman of membership; and National Pubwatch. Stephen’s story is fascinating given his • has made a significant contribution to the Institute and involvement in Pubwatch was triggered by a serious incident has made a major contribution in the field of licensing, in licensed premises which he was tasked with addressing for example through significant achievement in one or through his role as an inspector with Thames Valley Police in more of the following: 1994. His involvement started when National Pubwatch was first established in 1997 and has been entirely voluntary ever a Recognised published work
28 Title of the articleIoL / Type news of update article
• Research leading to changes in the licensing field or as There was a marked increase in engagement with the part of recognised published work initiative in 2017 and again in 2018 and we are keen to seen the Institute of Licensing News a Exceptional teaching or educational development trend continue with more job swaps, planned activities and b Legislative draftin lots of social media interaction: 2019 is a great opportunity c Pioneering or taking a leading role in licensing to raise awareness, promote positive partnerships and to initiatives or developments leading to significant engage with all parties. changes or having a significant impact. To find out more and get involved please email NLW@ It is stressed that Fellowship is intended for individuals instituteoflicensing.org We look forward to hearing from who have made exceptional contributions to licensing and you! #NLW2019 #getinvolved #licensingiseverywhere / or related fields rather than those who have simply done their jobs well. If you wish to nominate an individual for Summer Training Conference consideration for Fellowship, please let us know via email to The IoL’s Summer Training Conference (previously the [email protected] National Training Day) will take place at the Oxford Belfry Hotel on Wednesday 19 June. All awards are presented annually at the IoL’s Gala dinner which is held during the National Training Conference in Taxi courses – in association with Button November each year. Training New for 2019, we are delighted to announce that the IoL will National Licensing Week 2019 be working in association with Button Training to provide This year’s National Licensing Week (NLW) will run from 17- taxi licensing training courses at both Basic and Advanced 21 June. The IoL established NLW in 2016 in part to mark its levels. The first of the Basic courses will run in February and twentieth year, but also to provide a unique platform for all March, and we will follow these courses with the Advanced licensing practitioners to celebrate the role licensing plays level courses as follows: in business, home and leisure, keeping people safe and enabling them to enjoy their social and leisure time with • 9 September - Rushcliffe Borough Council confidence. • 11 September - Basingstoke Borough Council • 17 September - Taunton Holiday Inn The work that goes on behind the scenes by licensees, • 24 September - Preston City Council operators and regulators is often invisible to the public - until • 26 September - Harlow Council something goes wrong. NLW is a chance to change that and raise awareness across the country. It’s a chance to “shout The courses will take account of current Best Practice out” about the work you do on a daily basis and also a chance Guidance and any revisions to it, as well as emerging to celebrate and promote partnership working. statutory Guidance (s 177), official reports, current and recent consultations and all relevant case law. The underlying message of the initiative is that “licensing is everywhere”, and we continue to use daily themes to Safeguarding through licensing demonstrate how licensing effects daily lives: Safeguarding continues to be a major concern and an area where licensing is a key tool to obstruct and disrupt Day 1 – Positive partnerships sexual exploitation of children and vulnerable adults. The Day 2 – Tourism and leisure “Safeguarding through licensing” courses bring expert Day 3 – Home and family speakers together to discuss how licensing can be used to its Day 4 – Night time full potential, as well as looking at real case studies across Day 5 – Business and licensing the country.
The aim of the week is to raise awareness on the role Two safeguarding training events are currently planned as licensing plays in everyday life. For full details on the week follows: please visit http://www.licensingweek.org. The last couple of years in particular have seen some stand-out examples • 2 July - Taunton of organisations using the NLW initiative to showcase their • 2 October - Doncaster organisations and their individual roles in licensing; and in the case of local authorities, to raise public awareness of the Both events can be booked online via the IoL website. licensing regime and what it achieves.
2929 Institute of Licensing news Consultations and engagement 24 international airports and to any ports and hoverports in Tax conditionality – HMRC England and Wales: The Government has announced that it will consider The designation of airports as international airports for the legislating in Finance Bill 2019-2020 to introduce a tax purpose of section 173 of the Licensing Act 2003 should be registration check linked to licence renewal processes for revoked, so that the Act applies fully airside at airports, as it some public sector licences. does in other parts of airports. The 1964 and 2003 Acts both Applicants would need to provide proof that they were refer to ports and hoverports as well as to airports, so that the correctly registered for tax to be granted licences. This would same arrangements can be made portside. Our discussion has make it more difficult to operate in the hidden economy, centred on airports. Any similar designations made for ports helping to level the playing field for compliant businesses. and hoverports should also be revoked.
This follows an initial consultation in December 2017 when In its response to the call for evidence, the IoL cited the HMRC consulted on proposals in their “Tackling the hidden views from members following the publication of the Select economy: public sector licensing” public consultation. Committee report. Responses were mixed, with around 50% of members agreeing with the recommendation. Having considered feedback from the consultation, the Government intends to introduce legislation applying Those in support of the Licensing Act applying to airside conditionality in the following licensed sectors in England premises considered that the protections and legal and Wales: restrictions afforded by the legislation are as applicable and • The taxis and private hire vehicles (PHVs) sector. important airside as in other places, and in the main this • The waste sector. concerned the sale of alcohol to persons who are underage or • The scrap metal trade. drunk, the training of staff selling alcohol and the regulation / control of behaviour within the airport, together with the The Government will develop these proposals for a future accountability of the premises management where the Finance Bill and work with key stakeholders in the meantime premises and alcohol sales are not managed responsibly. to ensure that the new process is simple and as easy as possible to administer and comply with. Arguments against the application of the Act airside cited the potential difficulties for licensing authorities to access The Institute of Licensing responded to the initial airside areas to inspect premises, either to ensure compliance consultation and has been in contact with HMRC following or investigate complaints. In addition, it was considered that the Government’s response. The IoL will work with HMRC airside areas are tightly controlled and that there should to ensure that IoL members are kept abreast of plans to be more than sufficient means to regulate and control the implement these changes. behaviour of passengers and the responsible management of airside premises without the need to add an additional Call for evidence: airside alcohol licensing at layer of regulation. international airports in England and Wales Welsh Government consultation – improving The Institute of Licensing has responded to the call public transport for evidence in relation to airside alcohol licensing at international airports in England and Wales. This consultation from the Wales Government came as a surprise given the complete change in direction compared Much of the call for evidence sought evidence information with a previous consultation in 2017. In summary, the about the nature and extent of issues related to alcohol sales consultation proposed four recommendations, the first three in airside bars, but also looked at the potential considerations of which are not contentious: for removing the current exemptions under the Licensing Act 2003. 1. National minimum standards for drivers, operators and vehicles. The call for evidence followed the recommendation of 2. Enforcement powers given to any licensing authority in the House of Lords Select Committee following the post- relation to vehicles or licensed elsewhere; and legislative review of the Licensing Act 2003. The report from 3. An information sharing mechanism to promote the Select Committee recommended that the Government safeguarding. revokes the exemption from the Act that currently applies to
30 Title of the article / Type of article Institute of Licensing news
National minimum standards will be beneficial, and that a great many will concentrate on Cardiff on rugby and arrangements should certainly be made to enable cross- football match days, and other big events. Likewise, the border enforcement and continue to improve collaborative same would happen at the National Eisteddfod, the Royal working between authorities. Welsh show, and possibly even seaside resorts in the summer months. The fourth proposal, however, is of some concern. The proposal is for a single joint transport authority to licence A single private hire operator could dispatch vehicles taxis across the whole of Wales. This would cut across the across the whole country, and drivers will be free to move existing infrastructure of 22 Welsh local authorities and wherever they felt the work was available. undermine local policy, regulation and accountability, to the detriment of local communities. (See article p25) The Institute of Licensing will make a formal response to the consultation and has surveyed members across England There is no consideration in the proposal as to how and Wales to inform its final response. this would work, or the impact on the taxi industry or the population of Wales. If hackney carriages can stand or ply for The consultation will close on 27 March 2019. hire across the whole of Wales, it is not difficult to foresee Events Calendar 2019
March 2019 July 2019
18 Taxi licensing (Basic) - Taunton 2 Safeguarding through Licensing - Taunton 19-22 Professional Licensing Practitioners Qualification 9 Taxi Conference - Sheffiel - Birmingham 21 South West Region Meeting & Training Day - Bath August 2019 21 Working in safety advisory groups - Eastern region 29 London Region Meeting & Training Day - London 8 East Midlands Region Meeting & Training Day - Nottingham April 2019
2-5 Professional Licensing Practitioners Qualification September 2019 - Swindon 2 East Midlands Region Meeting & Training Day 3 West Midlands Region Meeting & Training Day - Solihull - Nottingham 4 & 5 Zoo Licensing - Yorkshire Wildlife Park - Doncaster 17-20 Professional Licensing Practitioners Qualification - Leeds May 2019 24-27 Professional Licensing Practitioners Qualification - London 14-17 Professional Licensing Practitioners Qualification - Birmingham 23 West Midlands Region Meeting & Training Day October 2019 - Cannock 2 Safeguarding through Licensing - Doncaster June 2019 8 Taxi Conference - Swindon ?-? Professional Licensing Practitioners Qualification 4 South East Region Meeting & Training Day - Winchester - Wales 4 Sex Establishment Licensing - London 6 Scrap Metal Dealers Act - Rother 12 North West Region Meeting & Training Day November 2019 - Manchester 13 Scrap Metal Dealers Act - Preston 20-22 National Training Conference 17-21 National Licensing Week 19 Summer Training Conference - Oxford 24 Gambling Training - London 25-28 Professional Licensing Practitioners Qualification - Manchester
3131 31 Scottish law update New proposals for regulating breeding of popular pets
The Scottish Government is consulting on new regulations for the licensing of dog, cat and rabbit breeding activities in Scotland. Stephen McGowan explains the key points
The Scottish Government’s which produce a total of five or more litters between them consultation proposals, in a 12-month period). The breeding of cats and rabbits is issued in September last currently unregulated; and in fact the Scottish Government’s year, set out a modern consultation proposes the first attempt to regulate the system of licensing breeding and sale of rabbits anywhere in the UK. allowing for independent accreditation for applicants The dealing of young dogs and cats is currently regulated by and looked at appropriate the Licensing of Animal Dealers (Young Cats and Young Dogs) thresholds for licensing, (Scotland) Regulations 2009 which require any individual linked to the size of the business undertaking and having who sells or acquires a cat or dog at less than 84 days old, regard to organisations with multiple premises. with a view to selling, to hold an animal dealing licence.
The main features of the modern system as set out in the The current regimes outlined set out standards specific consultation document are: to the licensed activity, provide powers to local authorities • A threshold number of breeding animals determining to inspect the premises, provide an appeals process to the whether licensing is to be applied. courts in case of refusal or imposition of onerous conditions • Licences should be flexible and may be awarded, on and create an offence where licensable activities are carried a risk-based assessment, for a period of up to three years. on without the appropriate licence. There are also a number • An exemption from inspection requirements for of disqualifications that are relevant to the local authority businesses assured by a UKAS accredited body. when assessing licence applications (such as a conviction for • Licences to be issued at any point in the year for a animal cruelty). Finally, they also permit a local authority to fixed term but can be suspended or revoked at any time. recover the costs for inspection, processing and enforcement • Discourage the breeding of dogs, cats and rabbits expenditure through a licence fee. with a predisposition for genetic conditions which lead to health problems in later life. Third-party commercial sales are a concern in Scotland, similar to the concerns raised in England where a buyer There is no question that reform is needed. The current can acquire a puppy or a kitten without any contact with licensing regime has not kept abreast of trends and given the the breeder. Sales via the internet can fuel this problem. As size of many litters and the significant sums of money that drafted, the consultation does not clearly set out to suggest young animals can command - particularly “fashionable” or that such sales should be prohibited. so-called “designer” or “hybrid” breed dogs - animal breeding can no longer be regarded as an activity which should be In its response to the consultation, the Scotland region regulated under legislation passed in a very different welfare of the IoL has commended the position taken by the and economic environment. Westminster Government in its commitment to ban third- party sales following the “Lucy’s Law” campaign and it is Current legal framework hoped that Scotland will follow a similar approach. Dog breeding in Scotland is currently governed by the Breeding of Dogs Act 1973 and the Breeding and Sale of Dogs In terms of the threshold for dog breeding, the requirement (Welfare) Act 1999. Under these Acts, a licence is required for licensing currently applies once five or more litters are for any individual who keeps a breeding establishment produced - this is clearly too high. There are number of (where a person undertakes the business of breeding dogs considerations to factor in to the licensing threshold in order for sale, owns or is responsible for breeding bitches or dams to distinguish clearly the domestic pet owner, who may be
32 Scottish law update either a “hobby breeder” or where the occurrence of a litter registered. The Trust supports licences for anyone breeding is a genuine accident or “one-off”, from those breeders who more than one litter. If there are issues with passing on a are operating a business / commercial concern. A balance puppy without it being registered from the third litter in a 12- needs to be set and animal welfare must sit at the heart of month period, it suggests that there would be a requirement the licensing regime and its requirements. for a licence that may seek to address those behaving irresponsibly. Licensing consideration could be required in relation to anyone in the business of breeding and selling dogs, cats Basic information would be provided through an online and rabbits regardless of the numbers involved. This could form to the local authority, giving the name and address of include a further status of persons “deemed to be so breeding the person with responsibility for the bitch who wishes to and selling” which would reflect the terminology of the 2018 transfer or sell the litter, the age of the bitch, the size of the Regulations. Those breeding one or two litters in a twelve- litter and whether any other litters are under the person’s month period and selling puppies would require a licence control. if they are deemed to be “breeding dogs and advertising a business of selling dogs”. The intention should not be for The person would pay a minimal fee which should be hobby breeders to be caught out under this test. sufficient for local authorities to recoup any costs incurred in maintaining that database. A separate registration would Temporary licences be needed for each litter. A registration number would be With temporary licences, a greater degree of accountability assigned for each litter and that number would be provided and traceability needs to be introduced into the system. This to anyone considering acquiring a puppy. They could check could be undertaken by means of introducing a temporary online that the registration number corresponds to the name licence system.1 Even if the threshold from five to three litters of the person with whom they are in contact. is reduced, there are still a significant number of puppies being born to unlicensed breeders including those who are The registration would be temporary, lasting only as long “accidentally” breeding and breeding with an intention to as it takes for the litter to be passed on / sold. The owner supply. would be responsible for informing the local authority when the last of the litter had been sold or passed on, and the local Introducing a temporary licence would be proportionate authority would maintain a record of each registration for to ensure that the suppliers are accountable, and that their as long as is reasonable, say 12 months. This should act as puppies are traced back to them by introducing a lighter a mechanism to help identify anyone registering multiple system of temporary registration with the local authority. times in a 12-month period while potentially unaware of the This would apply to anyone with a litter from a bitch for which need for a licence or even attempting to avoid the need for a they are responsible and who wishes to transfer ownership licence. of a puppy to someone else. It would apply to all those falling under the threshold of the licensing regime for dog breeders, The imposition of a fixed penalty could be considered irrespective of whether money changes hands. for someone that was found not to have registered (eg, an enquiry made to the local authority by a member of the The idea of a lighter touch regulation to cover activities public who had tried to acquire a puppy from the person). falling outside the scope of full licensing requirements is In keeping with current practice and legislation on dog supported by the OneKind Puppy Plan,2 which suggests breeding, dealing and microchipping, the name of the owner that every commercial sale should be subject to licence of the bitch would be included on the puppy’s microchip prior or registration. The body suggests that the threshold for to sale / transfer. As more of the public wishing to acquire dog breeding licences is set at two litters a year and that puppies become aware of their responsibility to check the anyone selling a single litter requires registration for a breeder is licensed or registered, this will provide a check temporary licence. In addition, the Dog’s Trust3 called for for those transferring puppies without registering. It would anyone breeding, selling or transferring the ownership of a become more difficult or them to sell / pass on the puppies. litter, regardless of any financial transaction or gain, to be Since the consultation’s aim is to improve traceability, 1 Temporary licences exist in other licensing contexts such as responsible ownership and overall animal welfare, temporary liquor and under the 1982 Act. registration would be a crucial link in achieving that. 2 https://www.onekind.scot/campaigns/stop-the-puppy- Whatever form the final proposals take, there will be a need profiteers/ for clear guidance, and the new arrangements should require 3 Public Petitions Committee of the Scottish Parliament in August records to be properly kept assisting in the enforcement and 2017. 33 Scottish law update regulation of the relevant limits imposed. The introduction of wording similar to Regulation 9(2) would make it clear that conduct is a relevant licensing issue, The consultation looks to address concerns about intensive whereas under the 1973 Act that is not the case. breeding, with a proposal that premises be restricted (through licence conditions) to a maximum of 20 breeding Regulation 9(1)(a) -(d) reflects the sort of issues found in dogs or cats within a calendar year. This is intended to section 1(4)(a) to (i) of the 1973 Act, but nothing in the 1973 allow individual attention to be given to animals and proper Act raises conduct as a basis for refusal. Introducing a similar socialisation of offspring as well as minimising the potential Regulation 9(2) is a welcome innovation. for disease spread on the site. 4 Adherence to conditions should be a factor in assessing This proposal is supported by the IoL Scotland region, and fitness. Other matters might be considered such as it is hoped that such requirements would also go some way association with family members or other connected persons to tackling the practice of “puppy farming” or other intensive who have an offending or disqualification history in relation breeding. to animals. However, consistent with other licensing regimes assessments of fitness, this should not be overly prescriptive. The new regime should enable assessment of accommodation for animals, socialisation (particularly A local authority ought to be able to consider knowledge of for puppies) and arrangements to ensure that where it codes of practice or statutory guidance under the 2006 Act as is beneficial to the welfare of the animals concerned, part of a rounded assessment of competence. This should be arrangements can be made and facilitated to keep young bolstered, of course, by knowledge of any statutory guidance animals apart from other animals. Appropriate measures to issued under these reforms. provide protection from suffering, injury and disease should include a duty to secure veterinary care, and to ensure A fit and proper test should be one of a range of grounds of reasonable precautions in relation to the control of infectious refusal, suspension or revocation of a licence. or contagious disease. Licence fees The journey in the life of an animal starts at birth, and the A meaningful and proportionate fee setting methodology first few weeks of life before it is sold to an owner can be should apply; the current application fee for a dog breeding crucial in ensuring that it goes to the new home, as happy, licence at only £2 under s 1(2) of the 1973 Act is no longer socialised and healthy. The standards imposed by the 2006 meaningful in the current financial climate. The fees regime Act, arguably, should have the same relevance to animal should support the administrative costs of the application breeders as they do to their ultimate owners. process for a licence, as well as those costs required to undertake ongoing inspection and enforcement. The Applicants for licences under the new regime should be regime should ensure that the local authority inspection required to demonstrate that they are aware of any relevant and enforcement is given the resources it needs, which will code or guidance and can give practical examples of how include personnel adequately qualified. they would meet the terms. To be consistent, similarly meaningful and proportionate Suitability of applicants / licence holders fees must also apply for those who breed cats and rabbits. Suitability of applicants must be considered as part of the application process, and local authorities should be required National database to satisfy themselves that the applicant is “fit and proper” It seems from the consultation that the Scottish Government prior to granting a licence. A local authority should be able is considering the benefit / need for a national database of to take into account any relevant information in making this licensed premises and activities. This is a major step forward judgement. and will go a long way towards promoting a transparent and accountable licence system. It will also enable the public to Regulation 9(2) is aimed at considering whether because check before buying a puppy, kitten or rabbit to ensure that of past or present behaviour or associations or likely future the breeder is properly licensed and compliant. behaviour, an applicant is likely to meet licence conditions. That introduces an explicit conduct test which is similar to a “fit and proper person” test. 5 Welfare Act 2006. It replaces (for Wales) the provisions of section 4 P8 of the consultation. 1(4) of the Licensing of Dogs Act 1973 by creating a more detailed 5 Regulation 9 was introduced under section 13 of the Animal licensing regime. 34 Scottish law update
Harmful breeding practices releases/2018/september/puppy-awareness-week-2018/). The scope of the consultation also extends to seeking to discourage harmful breeding practices. This is entirely Rights of objection and representation appropriate and detailed guidance should be published in Consistent with other forms of licensable activity such as consultation with organisations such as the SSPCA, British liquor and civic government licensing, the region suggested Veterinary Association and the Kennel Club. A regime built that it should be the case that any person is entitled to object around suitable conditions (and supported by the keeping to an application for a breeding licence and, in parallel, that of full records by the breeder relative to practices, including any person should be entitled to bring an application for records of breeding stock) would work as both a deterrent suspension or revocation of a licence. and promotion of general welfare. Currently there is no right of objection by third parties Additional conditions might also be considered which although some authorities do, on a pragmatic basis, permit would require appropriate health screening tests are carried representations and objections to be made. This is not out prior to mating. They might also ensure that mating is desirable as the lawfulness of such a practice without a clear avoided if the test results indicate that the parents are likely statutory basis is unclear. The new regime should enable to carry or have an inherited disease and should not be bred representations from bodies such as the SSPCA, OneKind, from. the Dogs Trust or Police Scotland where there are concerns about licence applications as well as existing licences to the In addition, an objective system was also being considered licensing authority. which could warrant a role for an animal welfare licensing objective based on the discouraging such breeding practices. In addition, a buyer who is concerned that the breeder Applicants for licences could, for example, be required to may have sold them an animal whose welfare has been show how they would meet this objective as part of their unacceptably compromised should be entitled to bring a application process. complaint relating to that breeder to the local authority. That would of course be independent of any rights at common law The consultation referred to independent accreditation, or under statute that the purchaser may have arising from and proposes an exemption from inspection requirements the sale. This could help tackle some of the abuses relating where the breeders are affili ted by UKAS.6 The IoL Scotland to internet sales. region response considered that accredited breeders would still require to be licensed by local authorities, although it The local authority should have discretion as to whether was accepted that there may then be scope for a reduced to refer the suspension or revocation complaint to a hearing, frequency of local authority inspection rather than any or to channel matters into an alternate route. It may be, for automatic exemption. The region suggested that the “star example, that the role of licensing standards offi er, now ratings” and “risk ratings” system in England and Wales familiar from other licensing contexts, could be extended might be considered as a template for Scotland, with ratings to deal with compliance issues. Working in conjunction issued by an accredited body or by the local authority. A local with animal welfare experts, this could be an appropriate authority could then choose to override any ratings provided extension of their role. Licensing fees could help support this by an accredited body provided it had a reasonable basis for role. doing so. That might be where evidence was found during an inspection of deterioration in conditions. Advertising licence applications The region also recommended that applications for licences Internet sales be advertised in a public manner. The IoL Scottish region asked the Scottish Government to consider whether and to what extent the sale of cats, dogs and The consultation closed on 30 November and the rabbits via online sites, needs a specific legal framework to Government response is expected soon. A new animal combat some of the worst forms of abuse such as where sick licensing regime is welcomed, and it is hoped that the final or welfare compromised animals are sold to unsuspecting proposals will take into consideration the responses arising and often inexperienced buyers. The recent report (2 from the consultation. September 2018) from the Kennel Club claims that one in three puppies bought online becomes sick or will die in their Stephen J McGowan MIoL first year (source https://www.thekennelclub.org.uk/press- Solicitor, TLT Solicitors
6 UK’s National Accreditation Body (UKAS). 35 Article Bright line policies: the right to say no is important Bright line policies can help to drive forward the public protection strategy of licensing authorities, argues Philip Kolvin QC
In this article, I shall demonstrate that there is nothing legally reduce the strength of alcohol sold locally. Fourth, it provides wrong with a licensing policy which unequivocally sets its helpful guidance to investors and applicants as to what is face against a licensing proposal. Whether a licensing policy likely to be permitted when deciding whether to proceed could go that far was the subject of anxious debate amongst and what proposals and controls to put into the operating licensing lawyers and authorities for decades. But in recent schedule. Fifth, it helps those making representations by years the debate has been laid to rest by a recognition that setting out tests against which the application can be judged. licensing law is no different from general public law in this Sixth, in the same way, it assists the decision-maker to come respect, together with a stiffening resolve of local authorities to a fair, consistent decision. Seventh, it assists appeal courts and even this Institute in using such “bright line” policies. in exactly the same way, and helps them to judge whether what the decision-maker did was wrong. This article carries an important health warning though. Ability should not be conflated with necessity, any more than I would go still further and say that licensing is a the existence of a nuclear deterrent mandates its use. collaborative effort between regulatory systems – planning, licensing, environmental health and the like – and a range The purpose and benefits of policy of responsible authorities who enforce them. A good policy Why have policies? Why not just allow licensing authorities to should be a hub for promoting thinking around the leisure make decisions on their merits? economy.
This may be answered by considering what policies do. The law of policy First, they can set out a benchmark for decision-makers, by It used to be thought that strict restraint policies were describing the likely result, absent other factors. Second, unlawful. When I started working in licensing 25 years ago they can set down standards of operation. Third, in those there was a collective tooth-sucking at the mere thought very respects, they provide a guide to prospective applicants that one could write a policy expressing a clear view one way as to whether their proposal is likely to meet with approval, or the other. This resulted in a “heads I win, tails you lose” and the standards and controls which may help them to their approach by applicants. Either the policy was strict, in which destination. case it was said it had to be ignored as precluding proper consideration of the merits. Or it was loose, in which case it Put conversely, without policies the licensing landscape was said it had to be ignored as too wishy washy to hold any would be chaotic. There would be the risk of inconsistent sway. decision-making and an incoherent patchwork of standards. Imagine if there were no clear planning policies on where you All that ended with the decision of Scott Baker J in R could put wind turbines, waste incinerators or heavy industry; (Westminster City Council) v Westminster Crown Court [2002] if every decision were subject to the presentational skills of L.L.R. 53. The background to that case was that Westminster the applicant and the wiles of the determining committee. had a fledgling cumulative impact policy whose phrasing The result would be a mess. The same goes for licensing. was on the vanilla side of what is now achieved through such policies. It said that there was a “policy presumption against” So, we can summarise the benefits of licensing policy certain proposals. Applicants were routinely persuading as follows. First, a clear licensing policy becomes part of magistrates to displace the presumption on the basis of the corporate culture of the council, for both offi ers and their good management, good character or the small size members. Second, it is a point of reference for other agencies. of the application or variation. Unsurprisingly, applications Third, it has a role in promoting voluntary action, eg, regarding by appalling managers of bad character for vast new venues business improvement districts, business crime reduction were thin on the ground. partnerships, community alcohol partnerships or schemes to
36 Bright line policies
After a routine defeat on appeal, the council took the court Taking the judgment as a whole, Scott Baker J revolutionised to court, in the shape of Scott Baker J in the Administrative the law and thinking relating to policy. It is worth setting Court. There, it persuaded the judge to find that the down what the judgment achieved. First, he made it clear principles governing policy in licensing law were no different that the policy can be phrased as a rule. It can go further from those governing public law in general. In particular, the and state that it is intended to be strictly applied, that decision of Lord Reid in British Oxygen Co. v Board of Trade exceptions must be genuinely exceptional and that certain [1971] AC 610 had made it clear that it was perfectly lawful to factors, eg, the good character of the applicant, will not be implement tough policies. He said at page 625: treated as exceptional. Second, the rationale for the policy may be stated in the policy. Where it is stated, any alleged The general rule is that anyone who has to exercise exceptions must be directed at the reasons for having a a statutory discretion must not “shut his ears to policy. So, for example, where the rationale is the reduction an application” … I do not think there is any great of crime, the proposed exception must be directed at crime difference between a policy and a rule. There may be reduction. Third, and crucially, the Magistrates’ Courts are cases where an offi er or authority ought to listen to a not the place to challenge the policy. They must take and substantial argument reasonably presented urging a apply the policy in the same way as the licensing authority. change of policy. What the authority must not do is to Challenges are to be brought by judicial review within the refuse to listen at all. But a Ministry or large authority short time periods permitted for such challenges. It should may have had to deal already with a multitude of be noted parenthetically that the s 182 Guidance on this similar applications and then they will almost certainly point (paragraph 13.9) is simply wrong and cannot override have evolved a policy so precise that it could well the judgment of the courts. be called a rule. There can be no objection to that, provided the authority is always willing to listen to The Scott Baker judgment enables policies to exercise firm anyone with something new to say … control over a wide field. But it is not a boundless dominion. In particular, a policy does not confer upon licensing In short, the decision-maker cannot barricade the committee authorities new legal rights to refuse. It only permits the room door or insert ear plugs to prevent auditory perception. authority to act within the legal discretion which it has. So, But, having listened, it can say “The policy says no. You have where a policy gave the impression that if the applicant for a said nothing to displace the policy. The usual rule must apply. premises licence did not put certain things in their operating The answer is no.” schedule the application would be refused, the policy was unlawful, because of course the authority only acquired a Scott Baker J went on to explain how a strict policy may discretion if there were relevant representations: R (British be drafted. His succinct advice – amounting to a rare judicial Beer and Pub Association) v Canterbury City Council [2005] masterclass in licensing policy drafting – bears re-reading EWHC 1318 (Admin). even by experienced practitioners: However, the judge in that case, Richards J, went on to 34. It is both understandable and appropriate for the approve a formula whereby a policy “expected” certain Claimant to have a policy in the light of the problems matters to be included in the operating schedule, failing it has identified in the West End. The policy needs to which it was more likely that there would be representations make it clear that it is not directed at the quality of the and a hearing, followed by refusal or inclusion of the item operation or the fitness of the licensee but on the global omitted. It is worth setting out the proposed formula in full: effect of these licences on the area as a whole. If the policy is not to be consistently overridden in individual All applications for new premises licences or variations cases it must be made clear within it that it will only need to be supported by an operating schedule. The be overridden in exceptional circumstances and that schedule must specify (among other things) the steps the impeccable credentials of the applicant will not which the applicant proposes to promote each of the ordinarily be regarded as exceptional circumstances. licensing objectives. It should be highlighted that the kind of circumstances that might be regarded as exceptional would be where If no responsible authority or interested person lodges the underlying policy of restricting any further growth an objection (known as ‘relevant representation’) to would not be impaired. An example might be where the application, the licensing authority must grant the premises in one place would replace those in another. application as set out in the operating schedule, subject The guidance document needs to be redrawn so as to only to mandatory conditions under the Licensing Act eliminate ambiguities and inconsistencies. 2003 . The steps proposed by the applicant will become
37 Bright line policies
licence conditions. The licensing authority will have no In this policy, there are a number of references to the discretion to refuse the application or to alter or add licensing authority’s requirements of applicants. As to the conditions arising from the operating schedule. explained above, the policy is only engaged where the licensing authority has a discretion following Where, however, there are relevant representations, the receipt of objections. In such cases, the licensing then a hearing before a licensing sub-committee will authority will not apply the policy rigidly, but will normally follow. After the hearing, the sub-committee always have regard to the merits of the case with a has full discretion to take such steps as it considers view to promoting the licensing objectives. necessary to promote the licensing objectives. These may include refusing the application, or adding to or Subject to inclusion of such a formula, there is nothing wrong modifying the conditions proposed in the operating with a policy setting out very firm expectations on applicants schedule. for licences and variations.
In exercising its discretion, the licensing sub- A further warning regarding legality is that in adopting a committee will have regard (amongst other things) licensing policy, the authority is bound by its public sector to this licensing policy. Therefore, in drawing up their equality duty under s 149 of the Equality Act 2010. This operating schedule, applicants would be well advised obliges the authority to have due regard to the need to (a) to read this policy carefully. Where an operating eliminate discrimination, harassment, victimisation and schedule complies with this policy, it is generally less any other conduct that is prohibited by or under this Act; (b) likely that an interested party or responsible authority advance equality of opportunity between persons who share will object to it, or that any objection will succeed. a relevant protected characteristic and persons who do not Therefore, compliance with this policy is likely to share it; and (c) foster good relations between persons who assist the applicant to avoid the delay and expense share a relevant protected characteristic and persons who do of a contested hearing, and the risk of a refusal or the not share it. Authorities need to appreciate that a restrictive addition of unwanted licence conditions. policy may impact detrimentally on the young (who are both workers in and users of the night-time economy) and the This is not to say that an application that complies LGBT community who may have specific needs regarding with the policy will necessarily be granted or that hours and types of use. While beyond the scope of this article, an application that does not comply with it will this is an important aspect of policy-making, and the duties necessarily be refused. Where there have been relevant imposed by the Equality Act on licensing authorities have not representations, the licensing authority will always always been understood or properly observed. consider the merits of the case, and interfere with the operating schedule only when, and to the extent, The golden thread of licensing policy necessary to promote the licensing objectives. Nor will Because of the learning derived from Scott Baker J and blanket or standard conditions be applied without Richard J, it is possible to describe a golden thread running regard to the merits of the individual case. So, for through licensing policy. example, the licensing authority will not interfere with an operating schedule which does not comply with this Through its policy, the licensing authority is able to write policy where the steps proposed are sufficient to meet down a set of aspirations regarding (i) what type of premises the licensing objectives in the individual circumstances (ii) go where (iii) operating at what times and (iv) according of the case. to what standards.
However, the policy represents the licensing Case by case, applicants are encouraged to make authority’s view of the best means of securing the applications which conform with those aspirations. Where licensing objectives in most normal cases. It has been they don’t, it is more likely that representations will be drawn up in consultation with other expert bodies made by reference to the policy. Where they are, it is more and responsible authorities, together with community likely that sub-committees will make decisions conforming stakeholders. While the contents of the operating to policy. Where they are challenged, it is more likely that schedule are a matter for the applicant, where there is magistrates will uphold the decision as one made pursuant objection to a schedule which departs from the policy, to the policy. the licensing sub-committee will normally expect to be given a good reason for the departure if it is to be Therefore, decision by decision, the town or city concerned asked to make an exception to the policy. is inched towards the vision set out by the authority in the
38 Bright line policies policy. The stronger the phraseology used, the more likely Sixth, the reasons for the policy should be given. The it is that the vision desired by the authority will be achieved broader the reasons, the less likely exceptions will be found. over time. For example, if the reasons are that there are simply too many premises, it is harder to see what could amount to an Seven lessons for bright line policies exception to the policy. For those authorities who want to draft strong policies, experience has demonstrated that there are certain drafting Seventh, a good policy will set out the evidence base for principles to help them achieve their objectives. the restraint, often in an appendix.
First, the policy itself needs to be strongly phrased. “The A policy hierarchy policy is to refuse” is much stronger than “there will be a We have established so far that bright line policies, which set presumption against grant”. their face against particular proposals, are lawful. But this is not the same as saying that there is always a good reason to Second, ever since the Middlesex Crown Court case, the use them. And it is very far from saying that they should be phrase “this policy is intended to be strictly applied” has the only medicine on the shelf. remained in vogue, perhaps augmented by “and applications will only be granted in genuinely exceptional circumstances”. Take one of the key examples of bright line policies – cumulative impact policies. It is all very well for those Third, a policy is strengthened by circumscribing governing a town or city to say what it does not want. But are exceptions, eg, that the character of the applicant or the size they sufficiently creative, business-minded, people-focused of the proposal will not be treated as exceptional. and clear-eyed enough to say what they do want? Have they spoken to users, employees, cultural providers, the industry More generally, how should the potential for exceptions be and residents so as to work out their vision for the future phrased? There are three possibilities: strong, medium and development of their area? weak. The strongest says “exceptions should only be made where the grant would not harm the policy”. The medium Assuming that they are and that they have, they may says “exceptions should only be made where the applicant develop a policy hierarchy which includes some or all of the proves that grant would not harm the licensing objectives”. following: The weak says “exceptions should be made where the authority cannot show that grant would harm the licensing • The authority will actively encourage abc. objectives”. Even in the medium case, the only achievement • There will be a presumption in favour of def, unless of the policy will be to spin the burden onto the applicant to outweighed by other specified factors. show no harm. The tough policy prevents grant except where • The authority will grant ghi subject to satisfaction of there is no harm to the policy and the reasons underlying defined criteria. it. So if the reasons are that there are too many premises, it • The authority will take into account the following effectively restricts grants to cases of one for one swaps. matters…. • There will be a presumption against xyz unless Fourth, if the authority has in mind that only a small exceptional circumstances are shown. (State, if necessary, category of circumstances are likely to be treated as what factors may, and usually won’t, be regarded as exceptional, it should say so. For example, it may consider exceptional.) that only applications which do not add to the existing stock • The council’s policy is to refuse, except in exceptional of venues are likely to be treated as exceptional, eg, where circumstances. an applicant is promising to surrender a licence of equivalent scale. If so, this should be stated. Other examples would be Thinking more widely, there are essentially three types of where the authority says that an exception might arise where restraint policy under the 2003 Licensing Act. There are an applicant proposes to substitute one activity for another, cumulative impact policies which lean against particular or to effect a real reduction in capacity, or to replace vertical types of venue in particular places. There are zoning policies drinking with seated consumption and waiter service. which set particular hours for particular types of place, eg, residential areas, high streets, leisure parks etc. And there Fifth, if the policy accords with national guidance, are more general hours policies, including those which this should be stated, since it gives the policy a further set out borough-wide hours for different sorts of venue. imprimatur. If it departs from national guidance, this should A licensing authority should ensure that if it creates a be acknowledged and a reason for departure given. presumption against a type of venue, it asks itself where such
39 Bright line policies a venue could be positively encouraged, and make provision But it safeguards itself from challenge by stating: accordingly. Otherwise, the demand will be met in a different local authority area, reducing the employment, economic However, the Licensing Authority will not apply these and cultural benefits of the proposal in the first area. policies inflexibly. It will always consider the individual circumstances of each application; even where an This is not to say that negative, bright line policies are a application is made for a proposal that is apparently bad thing. It is just that in many cases, such as in planning contrary to policy. town and city centres, they need to be balanced with positive policies, stating what the licensing authority does want to It squeezes the territory accorded to exceptions with the see, where and at what times. following language:
Bright line policy examples However, in considering whether a particular case One can now see bright line policies operating across a whole is exceptional, the Licensing Authority will consider range of licensing fields. The following examples are not the reasons underlying the Cumulative Impact Area exhaustive but indicative. special policies on cumulative impact.
(i) Westminster’s Licensing Act policy At the same time, it expressly circumscribes the most common exceptions with: This is the archetypal bright line policy, which has continued to evolve since the Middlesex Crown Court case. The Licensing Authority will not consider a case to be exceptional merely on the grounds that the premises The policy begins by drawing a firm line in respect of have been or will be operated within the terms of defined proposals: the conditions on the licence, or that are or will be generally well managed because of the reputation or It is the Licensing Authority’s policy to refuse good character of the licence holder or operator. This applications in the Cumulative Impact Areas for: is expected in the conduct of all licensed premises. pubs and bars, fast food premises, and premises … Neither will the licensing authority consider the offering facilities for music and dancing; other than case to be exceptional merely because the capacity applications to vary hours within the Core Hours under of the premises, or any proposed increase in capacity Policy HRS1. is small. The high number of premises in a saturated cumulative impact area means that a small increase in Then, having explained what the reasons for having the capacity in each premises would lead to a significant policy are, and the data on which it relies, it continues by increase overall within that area… saying that its concern is, plainly and simply, the overall number of venues: Westminster’s policy remains a model of a strongly worded policy. Whether such restraint is right in the entertainment The Licensing Authority’s view is that cumulative capital of the UK, if not the world, is a socio-political question impact in the Cumulative Impact Areas arises mainly beyond the scope of this article. from the numbers of pubs and bars, music and dance premises and fast food premises. The Licensing (ii) Sex and the City Authority wishes to encourage the provision of a range of entertainment where this is suitable and to reduce Schedule 3 paragraph 12(3) of the Local Government the extent of dominance of pubs, bars and night clubs (Miscellaneous Provisions) Act 1982 permits a licensing in the West End Cumulative Impact Area and of fast authority to refuse a licence for a sex establishment on a food premises in all the Cumulative Impact Areas. number of grounds, one of which is that there are already enough in the locality concerned. Paragraph 12(4) specifically The policy explains that it is supposed to be tough, by says that zero can be enough. adding: Emboldened, some authorities have created nil policies for Policies CIP1 FFP2 and PB2 and MD2 are intended to their areas. Here is the City of London Corporation’s: be strict, and will only be overridden in genuinely exceptional circumstances. The Common Council’s policy is that there is no locality within the City of London in which it would
40 Bright line policies
be appropriate to license an SEV. Accordingly, the 12 I repeat that I quite understand that Mr Simmonds appropriate number of SEVs for each and every locality contends that the policy should not be applied to within the City of London is nil. him, and Mr Rostron has emphasised that he is not challenging the policy. But in circumstances where the The policy is well-phrased. A policy which rules out licences appellant has not shown that there is any difference across the whole local authority area is unlawful, since the between his position and that of anyone else’s position Act gives no power to make district-wide assessments. The it seems to me that there is plainly a challenge to the form of words is in accordance with the judgment of Sir policy. John Donaldson MR in R v Peterborough City Council ex parte Quietlynn (1987) 85 LGR 249. In essence, this was the High Court agreeing that where, properly understood, an applicant is telling an appellate (iii) Liveries in Guildford court that s/he just doesn’t like the bright line policy, the court can dismiss the appeal on preliminary argument and Guildford Borough Council’s hackney policy requires all refuse to state a case about it. While the facts in Simmonds vehicles to be liveried in accordance with a design prescribed were quite extreme, it demonstrates just how jealously the by the council. The policy leaves no wriggle room. It simply courts will guard the authority’s right to pass and uphold a says that vehicles must have the requisite livery. strong licensing policy.
A local driver, Mr Simmonds, objected to the policy and (iv) Security Industry Authority appealed against the imposition of livery in his case. Having lost in the Magistrates’ Court, the Crown Court dismissed The Security Industry Authority has a statutory power under his appeal on a preliminary argument since what he was s 7 of the Private Security Industry Act 2001 to set criteria for essentially trying to do was to challenge the policy out the exercise of its licensing functions. It licenses hundreds of of time in an appellate court, which Scott Baker J in the thousands of individuals, and so has evolved clear policies Middlesex Crown Court case had said could not be done. The for how it deals with criminality, depending on the actual Crown Court refused to state a case, so in an act of supreme sentence or disposal of the case and the period since the persistence Mr Simmonds sought to judicially review the sentence restriction ended. These are set out in the matrix refusal, taking his case unsuccessfully all the way to the Court below. of Appeal. Along the way, in a case reported as R (Simmonds v Guildford Borough Council) [2017] EWHC 3002 (Admin) Supperstone J, having cited Scott Baker J, said:
SIA Matrix
CAF = consider additional factors
* All cases of imprisonment of 48 months to life are treated as CAF.
41 Bright line policies
This cut and dried approach was subject to challenge Exploitation in R (Nicholds) v Security Industry Authority [2006] EWHC 4.30 Where an applicant or licensee has been convicted 1792 (Admin) in which it was suggested that Parliament in of a crime involving, related to, or has any connection enacting the Private Security Industry Act 2001 could not with abuse, exploitation, use or treatment of another have intended such a self-imposed fetter on the discretion individual irrespective of whether the victim or victims of the authority. This was roundly rejected by the High Court. were adults or children, they will not be licensed. This The dictum of Deputy Judge Parker underlines the value of a includes slavery, child sexual exploitation, grooming, rule-based policy: psychological, emotional or financial abuse, but this is not an exhaustive list. 45. In my view, Parliament attached the greatest importance to ensuring, through the Act and the The Institute there makes a strong statement to protect regulation by the Authority, that criminality would vulnerable people from abuse, which is entirely appropriate be driven out of door supervision. It seems to me in the light of the Rotherham case, among others. At the that it is a matter of common sense that, at the very same time, the Institute draws an appropriate balance, in minimum, the commission of certain offences of accordance with what Lord Reid had to say in the British extreme violence for which a person has received a Oxygen case, to ensure that licensing authorities do not very substantial term of imprisonment (my example simply close their ears to applications: being such a case) automatically debars that person for a significant period (the duration of which is largely A licensing authority policy can take a ‘bright line a matter of judgment) from carrying on an activity, approach’ and say “never” in a policy, but it remains door supervision, which Parliament intends to rid of a policy, and as such does not amount to any criminal elements. In my view, other matters - such as fetter on the discretion of the authority. Each case the person’s other abilities and experience, or any view will always be considered on its merits having regard formed of him by people such as employers - simply to the policy, and the licensing authority can depart could not counterbalance in this statutory context the from the policy where it considers it appropriate to fact of conviction and sentence. Indeed, it would make do so. This will normally happen where the licensing a mockery of one of the crucial aims of the Act if such authority considers that there are exceptional a person were seen to be functioning as an officially circumstances which warrant a different decision. This licensed and duly badged door supervisor shortly approach was endorsed by the High Court in R (on the after release from custody for such a seriously violent application of Nicholds) v Security Industry Authority. offence. It seems to me that it would be the failure to have an automatic rule of debarment in such cases The endorsement by the professional body for licensing that would defeat the purpose of section 7. practitioners of bright line policies is an important step in their evolution, and will undoubtedly empower licensing It is not particularly surprising that an authority would authorities in generations to come. wish to set clear rules for whom it is prepared to licence following commission of criminal offences. The case Conclusion provides endorsement for such an approach. It should be In this article, I have shown that over the last 15 years the recalled, however, that the case turned on an interpretation licensing world has become more comfortable with bright of s 7, which refers to criteria, which are really another word line policies. Provided that they stay within the law, and for rules. Therefore, where what is in play is a policy, the provided also that flexibility is not entirely abandoned, such authority should always allow applicants to argue that their policies help to drive forward the public protection strategy case is exceptional. of licensing authorities. I have also argued that, particularly where the leisure economy is concerned, such policies (v) The Institute of Licensing: guidance on suitability of should be balanced by a positive vision of what the licensing taxi drivers authority wants to see, not just what it does not.
In 2018, the Institute of Licensing published its well recieved Guidance on Determining the Suitability of Applicants and Philip Kolvin QC Licensees in the Hackney Carriage and Private Hire Trades. Barrister, Cornerstone Barristers The guidance includes a number of examples of bright line policies. Here is one example:
42 Opinion Q. When is an expert not an expert? A. When crime statistics are cited
So-called expert witnesses are often unnecessary and, shamingly, can be less than expert in the way they present their “evidence”, argues Sarah Clover
I have been reflecting upon the excellent article by Charles Neither of those elements comprises expert evidence. He Holland in the November Journal of Licensing.1 It would be elucidates: “Factual evidence will include matters such as hard to disagree with a single word that he says in relation crime statistics or noise levels.” to the use and abuse of expert witness evidence in licensing proceedings. What is most striking in reading his article is Therein lies the rub. Those matters are, first and foremost, not so much the state we find ourselves in with experts of a factual, and not expert, nature. Secondly, the material procedurally, but the apparent need we are bound to, that is actually presented to the decision-maker, while practically, in requiring all this “expert” material in licensing purporting to be factual, and expected to be nothing less, is in the first place. “Light touch regulation”, anyone? Those often anything but. There is no excuse for this. Very rarely were the days. “Expert” evidence? How has it come to this? is this evidence, of crime incidents and statistics, given in the innocent belief that it is factual, when it later transpires, The contemplation of this question drives me to pontificate shockingly, that it is not. More commonly, the unveracity of again from a soap box that I very rarely leave, other than to it is very much understood by the author at the time of its perform essential life functions. I would love to pack it away submission, and is submitted regardless, in the hope that no for good, but it has not, to date, proven possible. one else will realise it. As I have said countless times before, this is all very well, and perhaps part of a cunning “cat and Mr Holland writes extensively and knowledgeably about mouse” game, when there is equality of representation on who may be an expert, and what they should know in order both sides, and a legal representative to protect the party to qualify. My examination focuses upon what we need from on the receiving end of the misleading information. But it an expert in a licensing case in the first place, and why we is decidedly not OK when the “victim” of this practice is all now need so regularly to call upon them to contribute. My alone, unrepresented, and, worst of all, unsuspecting. We conclusion is that, in some cases, it should be wholly and expect more of our Responsible Authorities, who are trusted. entirely unnecessary. The clue is in the title.
Mr Holland identifies the two most common examples When is this going to end? Everyone reading this knows of expert evidence in licensing proceedings as relating to what I am talking about. That is the shame of it. The crime acoustic assessments, and analysis of police crime incident incident report evidence submitted, week in, week out by log reports. Upon the former, I have nothing to add. Acoustics police forces up and down the country continues, in some undoubtedly comprises expert territory, upon which lay cases ( thankfully not all, but too often to avoid this tirade) to persons are well advised to set no ill-informed, albeit softly be inaccurate to the point of mendaciousness. The problem shod foot. with this is that absolutely no police crime statistics or evidence can be taken at face value, because it is impossible Mr Holland comments that police offi ers can be experts. to differentiate between the reliable and the unreliable until This is true in principle, but by no means in all cases. Mr the evidence has been tested to check the point. Holland highlights the distinction between a police offi er giving evidence as an expert, who would have to comply with This phenomenon has had the most serious of the applicable criteria that he outlines, and those giving plain repercussions. It was noted and condemned by the House evidence, common or garden. He comments: “The evidence of Lords, whose committee examining the Licensing Act of the police as responsible authorities will often be a mix of 2003 specifically noted that the evidence of the police was factual evidence and opinion evidence”. not to be given any special weight, not least because of the way they handled it. As a direct result, the Lords chose to 1 Charles Holland, The use and abuse of evidence, (2008 (JoL22 amend paragraph 9.16 of the s 182 Guidance to take away PP4211). 43 Opinion This type of evidence is rarely unwelcome in principle in the special weight and status of police evidence in licensing the committee or court, although more than one District proceedings. Judge has commented that it is not really “expert” evidence, and there is some force in that observation. Sometimes, The old paragraph 9.12 said: what is required is not expertise of a sort that a lay person could not exercise, but independence of the sort that should The licensing authority should accept all reasonable and have been demonstrated by the Responsible Authorities in proportionate representations made by the police unless the first place, but which is sadly lacking. These independent the authority has evidence that to do so would not be witnesses are required because appropriate for the promotion the Responsible Authorities in of the licensing objectives. question, and usually the police, However, it remains incumbent have conspicuously failed in on the police to ensure that their ‘Sometimes, what that regard. The substitute representations can withstand is required is not independent witness records the scrutiny to which they would accurate empirical observation be subject at a hearing. expertise of a sort on the ground, rather than that a lay person “spin”, or provides a careful, Now paragraph 9.12 says: but laborious trawl through the could not exercise, but crime log records, to ensure that … any responsible authority independence of the only those incidents which are under the 2003 Act may make really relevant to the case are representations with regard to sort that should have actually presented as evidence, any of the licensing objectives been demonstrated and that the others are rightly if they have evidence to by the Responsible contextualised. This should support such representations. be entirely unnecessary if the Licensing authorities must Authorities in the first job had been done properly by therefore consider all relevant place, but which is those rightly responsible for it representations from responsible in the first place. authorities carefully, even where sadly lacking.’ the reason for a particular One of the key responsible authority’s interest recommendations from the or expertise in the promotion of House of Lords Committee a particular objective may not Report was enhanced training for councillors and the police be immediately apparent. However, it remains incumbent and no doubt this vexed issue would form a centre piece of on all responsible authorities to ensure that their such training, although that begs the question as to how representations can withstand the scrutiny to which they difficult it could possibly be to grasp. This continued poor would be subject at a hearing. practice, and the lengths to which parties have to go to correct it is expensive and time-consuming for all concerned, The contrast is stark and deliberate. including, of course, the councils and Responsible Authorities themselves, and most particularly when it necessitates the The use of an expert witness to address police statistics introduction of an expert, or “expert” into the proceedings. in licensing proceedings is a necessity born of this unhappy Undoubtedly, clients usually do not want to have to call situation. Very often, the expert called in a licensing experts: this only represents extra cost and length of process. committee hearing or a licensing appeal will be described They would much rather not have to. The fact that they do as a “licensing consultant”, a “due diligence” consultant or have to in this particular context is a continuing blight on the independent witness of the “mystery shopper” variety, and licensing system. commonly, as Mr Holland points out, will be a person with a policing background, even to the extent of a “gamekeeper Sarah Clover turned poacher” (or the other way around, depending upon Barrister, Kings Chambers, Birmingham one’s point of view).
44 Gambling licensing: law and procedure update Under-age gaming: issues of concern to the trade Test purchase operations showing almost 90% of the pubs let under-18s play Category C gaming machines and the Gambling Commission’s Consultation on the National Responsible Gambling Strategy are assessed by Nick Arron
Those of you who attended automatic entitlement if an offence under the Act has been the Institute of Licensing committed on the premises. National Training Conference last November will recall the Alcohol-licensed premises can apply for a licensed Gambling Commission’s Helen premises gaming machine permit, to authorise Category D Rhodes presenting its survey and C gaming machines at the premises, where the alcohol findings. The results are of licence holder proposes to provide more than the two concern to the licensed trade. machines permitted by the automatic entitlement. The Gambling Commission letter made reference to the Code of As an aide memoire, pubs, Practice for Gaming Machines in Clubs, and Premises with an and premises benefitting from Alcohol Licence issued by the Gambling Commission under s an alcohol Premises Licence under the Licensing Act 2003, 24 of the Act. The code makes it a condition of the licensed are permitted to have Category D and Category C gaming premises gaming machine permit that: machines. Category D gaming machines can be played by under-18s. Category C gaming machines can only be played All gaming machines situated on the premises must be by those aged 18 or over. Pubs and alcohol licensed premises, located in a place within the premises so that their use can along with clubs, are venues permitted to provide gambling, be supervised, either by staff whose duties include such where children have direct access to adult the machines. provision (including bar or floor staff) or by other means.
During 2018, the Gambling Commission worked with Section 3.1 of the code also sets out good practice in relation licensing authorities and the police in conducting a number to access to gambling by children and young persons, referring of age verification operations to test whether under-18s to procedures intended to prevent underage gambling which could play on Category C gaming machines in pubs and would include procedures for checking the age of those who licensed premises. appear underage, and refusing entry to anyone unable to produce an acceptable form of identification. In all, 61 alcohol-licensed premises were visited, and 89% failed to prevent children accessing the Category C gaming The code suggests that permit holders take all reasonable machines. The 89% failure rate compares to an average measures to ensure that all relevant employees understand failure rate of 15-30% for other age restricted products such as their responsibilities for preventing underage gambling. alcohol or tobacco. The failure rate did not vary significantly between licensing authorities nor between large or small The letter emphasises the Commission’s wider focus pub companies or the independent sector. on children and young person, and the support that it will provide licensing authorities in their further actions against The Gambling Commission wrote to licensed trade operators who fail to meet the conditions of their permits, associations such as the BBPA and UK Hospitality, referring and it says it will not hesitate to amend the code of practice for to s 46 of the Gambling Act 2005, whereby a person commits gaming machines in clubs and pubs if that proves necessary. an offence if he invites, causes or permits a child or young person to gamble. My understanding, and experience with clients, is that no licensing authority has taken formal action against any of Licensed premises have an automatic entitlement under s the pubs which failed a test purchase operation, although 282 to provide up to two gaming machines of Category C or a number have been written to, reminding them of their D machine. In its letter the Gambling Commission referred responsibilities. to s 284 under which a licensing authority may remove the
45 Gambling licensing: law and procedure update
We know that further test operations will take place, and National Responsible Gambling Strategy if pubs continue to fail to prevent under-18s from playing on On 4 December last year the Gambling Commission published Category C gaming machines, then action will be taken by a discussion paper on the new National Responsible licensing authorities and / or by the Gambling Commission. Gambling Strategy and a consultation on the licence The Gambling Act, as well as empowering licensing authorities conditions and codes of practice. The current strategy comes to remove the automatic entitlement, also provides powers to an end in March 2019. The aim of the new strategy is to to licensing authorities to cancel licensed premises gaming reduce gambling harms. The Commission is seeking views on machine permits. They could also potentially take action, the strategy’s five priority areas for action, which are: by way of review, under the Licensing Act 2003 Premises Licence, under the crime and prevention objective. Priority Area 1: Research to inform action – to widen the research base by establishing a central data repository. The Gambling Commission, as it mentioned in its letter to Priority Area 2: Prevention – to progress the framework for the trade associations, may decide it is necessary to amend measuring gambling related harms. the code of practice for gaming machines in clubs and pubs, Priority Area 3: Treatment – to ensure that current for instance to make the good practice code at s 3.1 on age treatment options are evaluated, and that treatment verification a condition rather good practice advice. needs are assessed. Priority Area 4: Evaluation – to embed a culture of evaluation It is likely that we will be talking about this subject again in through the active use of the evaluation protocol. future journals. Priority Area 5: Gambling businesses – to focus industry efforts for safer gambling through targeted collaboration. Young people and gambling Also in November, the Gambling Commission published its The strategy is designed to better co-ordinate the way “Young People and Gambling 2018” research study of 11-16 that action is taken to reduce gambling harms, by focus on year olds in Great Britain. The annual survey found that 14% gambling safer with the aim of reducing harms, rather than of 11-16 year olds had spent their own money on a gambling promoting responsible gambling. The Commission refers activity in the week prior to taking part in the study. This is to the notion of promoting responsible gambling placing two percentage points higher than in 2017, but the gambling an undue focus on individuals who are experiencing harm, prevalence is still relatively low by historical standards: in and that it does not sufficiently consider products or the 2011 the study found that 23% of 11-15 year olds gambled. environment.
The common gambling activities of the groups were Running alongside the discussion, the consultation relates placing a private bet for money with friends (6%), followed to a proposed amendment to the licence conditions and by National Lottery scratch cards (4%), fruit / slot machines codes of practice, to specify that licensees’ contributions in an arcade, pub or club (3%) and cards for money with to research, prevention and treatment of gambling harms, friends (3%). Underage gambling activity is less prevalent required under social responsibility code provision 3.1.1, in licensed premises such as betting shops, bingo halls and are made to one or more organisations that are approved casinos. The average spend on gambling activity was £16, by the Gambling Commission. Currently the contributions from an average disposable income of £28, money given to can be made to any entity that delivers each of the aspects them as pocket money or money earned in the past week. of research, harm prevention and treatment. In practice the majority of contributions are made to Gambleaware, which It is interesting to note that under-18s are permitted to bet seeks a voluntary contribution of 0.1% of licensees’ gross or play cards privately with friends, and play on Category D gambling yield. gaming machines. Sixteen year olds, who took part in the study, can participate in the National Lottery, and the study There has been discussion on the introduction of a statutory does not provide evidence of an issue with under-18s playing levy to replace the current requirement under the licence adult gaming machines in pubs or other alcohol licensed conditions and codes of practice. The intention behind the premises. Commission’s proposals is to direct licensees’ contributions to the strategy aims. A full copy of the report can be found on the Gambling Commission website. Nick Arron Solicitor, Poppleston Allen
46 Article Understanding how the costs system works
Charles Holland outlines the principles underlying the awarding of costs, and how they apply to licensing disputes. The contrast with punitive civil litigation awards may surprise many
For much of the time, licensing is a “safe space” so far as resident-led reviews are the exception rather than the rule. costs are concerned. One such exception was a recent review brought by a In most “first instance” licensing tribunals - such as local single residential household against my client’s club in authority licensing sub-committees - the typical common Easington Colliery (the location for the childhood home of law principle that costs “follow the event” does not apply. Billy Elliot). Although a supporting police representation was compromised by way of the addition of agreed conditions, the So, when a party decides to participate in a licensing case, applicant for the review was not satisfied. The matter therefore whether as an applicant or an objector, there is generally no proceeded to a full hearing in the main council chambers, risk that if unsuccessful, it will have to pay the legal costs of attended by the usual gamut of premises management, any other party: what are known as “adverse costs”. witnesses and supporters, lawyers, responsible authority representatives, local authority offi ers, elected members Adverse costs risk is a strong disincentive to participation and the press. The debate on complaints ranging from the in legal proceedings. Even allowing for his characteristic tethering of my client’s members’ horses to the telegraph pole hyperbole, the late satirist Auberon Waugh perhaps spoke outside the applicant’s house to a parallel war that had been for many litigants (specifically libel litigants) when he wrote: waged on social media was conducted at not insignificant cost to both the operator and the local authority. Yet there Anyone who goes to law puts himself in the hands of an was no risk that the ultimately unsuccessful applicant should unscrupulous ring of bandits and thugs who milk both pay for any of it. parties as hard as they can until one of them has to pay. If one allows for the stupidity and prejudice of judges, conceit This bubble of safety is almost unheard of in civil litigation, and idleness of barristers, and diffuseness of English law, where not just losing but almost every action carries potential neither side can have a more certain chance of winning a costs consequences. Apply for an adjournment, disclose a legal action than on a tossed coin, which is a much cheaper late document, amend your case, call a duff expert - you can way of settling things. expect to be rewarded with an adverse costs order, even if you ultimately win the case. And like the doubling cube in It is perhaps surprising that the absence of an adverse backgammon, without prejudice offers of settlement and the cost risk does not seem to have had the converse effect of associated “Part 36” regime can be used to turn cases into incentivising participation. games of chicken where the main issue can become costs rather than the actual subject-matter of the claim. The Licensing Act 2003 enfranchised a wide range of interested parties (including local residents and their The luxurious cotton wool that surrounds participants in associations) to make applications, at any time, for a review licensing cases at first instance is, however, absent in many of a premises licence, with no adverse costs risk. This was a appellate tribunals. On appeals, things can get financially radical reform. I, for one, was rubbing my hands in anticipation unpleasant in the event of a defeat. of the explosion of work as residents’ associations, previously unable to initiate revocation proceedings, got stuck into A recent example is the Stack appeal in Newcastle upon reviewing the problem premises within their areas, safe in Tyne (Endless Stretch Limited v Newcastle City Council and the knowledge that they could not be taken to the cleaners Danieli Holdings Limited (Costs), Newcastle Magistrates’ in the event of defeat. Court, 2 October 2018), where District Judge Kate Meek ordered the unsuccessful trade objector appellant to pay the Much to the disappointment of my bank manager, this did costs of both the local authority and operator respondents, not turn out to be the case. My personal experience is that summarily assessing those costs as £28,923 and £57,984
47 How the costs system works
respectively, so a grand total of £86,907. This was on top of the licensing appellate court. what the appellant had paid the QC, senior junior, licensing consultant and cost consultant it fielded for the appeal (and What is ‘the event’? also on top of representation at first instance). The appellant It is often said, in short-hand, that, where costs follow the is currently en route to the High Court in an appeal by way of event, the loser pays the winner’s costs. In fact, this is an case stated; time will tell whether this improves or worsens oversimplification. the costs position for it. CPR 44.2(4) provides that: Stack is an extreme example, but the principles applied by the judge in that case are of universal application in licensing In deciding what order (if any) to make about costs, the cases. In this article, I will attempt to summarise for licensors court will have regard to all the circumstances, including— those general principles and look at how they operate in particular regimes. (a) the conduct of all the parties;
The general rule: costs follow the event (b) whether a party has succeeded on part of its case, The general rule that “costs follow the event” is codified for even if that party has not been wholly successful; and the purposes of civil litigation in the Civil Procedure Rules 1998 (CPR). (c) any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer CPR 44.2(2) provides that: to which costs consequences under Part 36 apply.
If the court decides to make an order about costs— It is not therefore simply a matter of looking at who has won (and indeed there can be huge debate as to who is the (a) the general rule is that the unsuccessful party will be “winner”). All the circumstances need to be considered, ordered to pay the costs of the successful party; but including the three categories of specified circumstances: conduct, success on distinct issues, and the content of (b) the court may make a different order. admissible offers (so including offers marked “without prejudice save as to costs”). The civil court has a discretion as to costs: s 51(1) Senior Courts Act 1981. S.52(3) emphasises: “The court shall have CPR 44.2(5) puts more flesh on the bones so far as what full power to determine by whom and to what extent the might constitute “conduct”. It includes: costs are to be paid”. (a) conduct before, as well as during, the proceedings CPR 44.2 picks up that ball and runs with it: the court may and in particular the extent to which the parties followed decide to make no order as to costs at all, but if it does, the the Practice Direction—Pre-Action Conduct or any relevant general rule of costs following the event is not the only order pre-action protocol; that can be made. It is important to remember the width of the discretion and not to treat the general rule as an absolute (b) whether it was reasonable for a party to raise, pursue rule. CPR 44.2(1) makes this very clear: or contest a particular allegation or issue;
The court has discretion as to— (c) the manner in which a party has pursued or defended its case or a particular allegation or issue; and (a) whether costs are payable by one party to another; (d) whether a claimant who has succeeded in the claim, (b) the amount of those costs; and in whole or in part, exaggerated its claim.
(c) when they are to be paid. In short, unreasonable behaviour is likely to be penalised in costs. If the “winner” has engaged in bad conduct on the That being said, the general rule is a pretty good starting way to victory, it can expect a costs sanction. point. In licensing regimes where the appellate court has a similarly wide discretion (the Licensing Act 2003 regime being The rule then sets out the sort of orders the civil court can one such example), then the manner in which the CPR invites make. CPR 44.2(6) and (7) provide: the civil court to exercise its discretion is a useful guide for
48 (6) The orders which the court may make under this rule separate day, with directions as to service of costs schedules include an order that a party must pay— and written representations).
(a) a proportion of another party’s costs; Summary assessment is, by necessity, a more rough and ready approach than detailed assessment (which proceeds (b) a stated amount in respect of another party’s costs; almost like satellite litigation, with points of claim, points of dispute, and its own internal costs regime). An issue-based (c) costs from or until a certain date only; costs order, tricky enough to unpick in the course of detailed assessment, is almost impossible to quantify on the limited (d) costs incurred before proceedings have begun; information available in a summary assessment. When considering making a liability order that it is immediately (e) costs relating to particular steps taken in the going to have to summarily assess, the court is therefore proceedings; much more likely to use the broad-brush approaches of ordering the paying party to pay all, or a percentage of the (f) costs relating only to a distinct part of the receiving party’s reasonable costs, or the receiving party’s proceedings; and reasonable costs between certain dates.
(g) interest on costs from or until a certain date, The indemnity principle including a date before judgment. Costs orders cannot be punitive, and it is a general rule (albeit subject to exceptions) that a paying party cannot be ordered (7) Before the court considers making an order under to pay any more than what the receiving party is liable to pay paragraph (6)(f), it will consider whether it is practicable to its own lawyers. make an order under paragraph (6)(a) or (c) instead. This is known as the indemnity principle: the costs the So, it can follow in the civil courts that, despite the general paying party pays to the receiving party are to indemnify the rule, the “winning” party might end up not receiving all or receiving party for its costs, rather than to give it a profit or a sometimes any of its costs, or indeed end up having to pay bonus. the costs of the “losing” party on some issues. In the civil courts, the schedule of costs form used for The two-stage approach of liability and summary assessment, form N260 (easily found on by means quantum of your favourite search engine) contains a declaration to be Costs applications should always be determined in a two- signed by the solicitor stating: stage approach looking at (1) whether costs are payable by one party to another (liability) and, if so (2) the amount of The costs stated above do not exceed the costs which [the those costs (quantum). client] is liable to pay in respect of the work which this statement covers. Counsel’s fees and other expenses have In the civil courts, liability is nearly always dealt with by the been incurred in the amounts stated above and will be trial judge (or the judge hearing any application where costs paid to the persons stated. are at large). Although not a strict requirement (see Tower Hamlets LBC v The trial judge may decide quantum there and then (a Thames Magistrates’ Court, Lovebox Festivals Ltd [2012] EWHC process called summary assessment) using costs schedules 961 (Admin)) it is good and probably productive practice provided by the parties, or may send the matter off to a to serve costs schedules in licensing appeals in advance of costs judge for detailed assessment in default of agreement the hearing where costs are to be determined. This can be between the parties in the meantime. In general, summary either on form N260 or a document adapted from it. It makes assessment will not be undertaken for cases lasting longer sense to include a solicitors’ declaration in the N260 rubric. than a day. For a lengthy and / or complex appeal it might be worth engaging the services of a costs draftsman to prepare the In licensing cases, while it might be theoretically possible costs schedule. for the matter to be sent off for detailed assessment, the general practice is to have summary assessment of costs. One important interpretation of the indemnity principle This is even so when cases last several days (eight days in when costs are claimed by local authorities can be found the Stack appeal, where the costs hearing was listed for a in Re Eastwood (Deceased) [1974] 3 W.L.R. 454 (CA). This
49 How the costs system works established that the proper method of assessment where (a) only allow costs which are proportionate to the government legal services are provided “in house” by matters in issue. Costs which are disproportionate in employed solicitors is to treat the bill as if it was that of an amount may be disallowed or reduced even if they were independent, external solicitor, and so, essentially those reasonably or necessarily incurred; and are the rates that are recoverable. Re Eastwood has survived repeated attack, a recent example being R (Bakhtiyar) v (b) resolve any doubt which it may have as to whether Secretary of State for the Home Department (Costs) [2015] costs were reasonably and proportionately incurred or UKUT 519 (IAC), which described the “presumed indemnity” were reasonable and proportionate in amount in favour of that the external rates give. the paying party.
So far as offi ers’ time is concerned, in Federation (Factors which the court may take into account are set out Against Copyright Theft v North West Aerials [2006] 2 Costs in rule 44.4.) LR 361, the Supreme Court Costs Offi e allowed a time- based apportionment of offi ers’ salaries as recoverable (3) Where the amount of costs is to be assessed on the from central funds in the criminal costs regime as a cost indemnity basis, the court will resolve any doubt which it of prosecution. In R (Ayres) v. Cotswold District Council may have as to whether costs were reasonably incurred (CO/2353/2017), unreported, October 2017, John Howell QC or were reasonable in amount in favour of the receiving sitting as a Deputy High Court judge ruled that the time spent party. by a local authority’s planning offi ers in assisting with the … preparation of an acknowledgement of service in response to an application for permission to apply for judicial review (5) Costs incurred are proportionate if they bear a can be recovered. These cases raise an interesting question reasonable relationship to – as to whether apportioned offi er salaries can be recoverable as part of the costs of an appeal. However, an attempt to (a) the sums in issue in the proceedings; recover such costs in the Stack appeal did not find favour with the District Judge. (b) the value of any non-monetary relief in issue in the proceedings; Assessment on the standard and indemnity basis (c) the complexity of the litigation; Just to confuse everyone, the word “indemnity” is used for an additional purpose in the context of costs. (d) any additional work generated by the conduct of the paying party; and If a costs liability order is made, there are two alternative bases on which quantum can be assessed: the standard basis (e) any wider factors involved in the proceedings, such as and the indemnity basis. reputation or public importance.
The distinction is codified in CPR 44.3, which provides: So the differences between the two methods are:
(1) Where the court is to assess the amount of costs • Where costs are assessed on the standard basis, (whether by summary or detailed assessment) it will assess only proportionate costs are allowed; where costs are those costs – assessed on the indemnity basis, disproportionate costs are not disallowed; (a) on the standard basis; or • Where costs are assessed on the standard basis, any doubt that the costs were reasonably incurred or (b) on the indemnity basis, reasonable in amount is resolved in favour of the paying party; where costs are assessed on the indemnity basis, but the court will not in either case allow costs which that doubt is resolved in favour of the receiving party. have been unreasonably incurred or are unreasonable in amount. Guidance as to when indemnity costs might be appropriate was given in Excelsior Commercial & Industrial Holdings Ltd (2) Where the amount of costs is to be assessed on the v Salisbury Hammer Aspden & Johnson [2002] EWCA Civ 879. standard basis, the court will – Lord Woolf C J said (at [32]) that the “critical requirement” was that “there must be some conduct or some circumstance
50 How the costs system works which takes the case out of the norm”. Likewise, Waller L J not a submission with which the district judge engaged in said (at [39]): her decision, and it appears that she assessed costs on the standard basis. The question will always be: is there something in the conduct of the action or the circumstances of the case which When the ‘unsuccessful’ party is the takes the case out of the norm in a way which justifies an regulator order for indemnity costs? In Bradford MBC v Booth [2001] LLR 151, B successfully appealed Bradford’s refusal to renew his private hire vehicle In the civil courts, the concept of “proportionality” derives operator’s licence to the Magistrates’ Court, where he was from in the overriding objective at CPR 1.1(1) “of enabling the awarded his costs by the magistrates in the assessed sum court to deal with cases justly and at proportionate cost”. of £750. On a point of principle, Bradford appealed by way of case stated to the Divisional Court, where B was not No similar objective applies in licensing appeals. That represented. has not stopped the High Court finding that proportionality applies in licensing costs. In Lovebox Burnett J at [47] Bradford argued that because it was the regulator, it recited some of the “general principles when considering should only have costs awarded against it if it had acted the question of costs applications as regards quantum”, unreasonably or in bad faith, suggesting that otherwise a including: conflict might arise between its duty to protect the public qua regulator, and its concern to protect its position on costs. When deciding the amount of costs to be awarded, the court will take account of all of the circumstances of the Lord Bingham C J rejected Bradford’s submission at [22], case but they include the following: holding that it went too far and would “deprive the justices of any discretion to view the case in the round which in my (a) What was at stake in the proceedings? judgement is what s 64 intends”.
(b) What was the importance of the issue to the parties He held that the Magistrates’ Court power to award costs before the court? (found here in s 64(1) of the Magistrates’ Courts Act 1980) conferred a discretion to make such order as to costs as it (c) What was the complexity of the appeal? thinks just and reasonable, applying both to liability and quantum; and that in exercising that discretion, it had to (d) What skill, specialist knowledge and responsibility did have regard to all of the relevant facts and circumstances of the lawyers concerned require or assume? the case.
(e) How much time was actually spent? So, far, so conventional: an identical position as is found in CPR 44.2(1) and (4). In the round, the court will be concerned to check that the expenditure actually incurred was reasonable, and ensure The licensing nuance came in the additional factors which that any award of costs is proportionate. the Divisional Court held the appellate court should have regard in licensing cases. Lord Bingham C J said: It was not explained how the proportionality principle had come to be imported into a licensing case given the absence Where a complainant has successfully challenged before of any equivalent to CPR 1.1 in the Magistrates’ Court Rules justices an administrative decision made by a police or 1981. It may be that Burnett J simply assumed that the regulatory authority acting honestly, reasonably, properly position would be the same. That being said, it is a brave and on grounds that reasonably appeared to be sound, advocate who stands up and argues that the licensing regime in exercise of its public duty, the court should consider, in has no concept of proportionality given that this has been addition to any other relevant fact or circumstances, both the mantra of the civil courts for the last 20 years. (i) the financial prejudice to the particular complainant in the particular circumstances if an order for costs is not It should be noted that the indemnity basis can apply made in his favour; and (ii) the need to encourage public even on summary assessment (CPR 44.3(1)). In Stack, the authorities to make and stand by honest, reasonable and second respondent argued that the manner in which the apparently sound administrative decisions made in the trade objector appellant had conducted its appeal was “out public interest without fear of exposure to undue financial of the norm” and brought indemnity costs into play. This was prejudice if the decision is successfully challenged.
51 How the costs system works
In R (Cambridge City Council) v Alex Nestling Ltd [2006] formulation (per George Leggatt QC sitting as a Deputy High EWHC 1374 (Admin) (DC) Richards L.J. held at [11] that Court Judge in R (Newham LBC) v Stratford Magistrates’ Court, Bradford v Booth principles apply not to just to taxi licensing Saron and Dodds [2012] EWHC 325 (Admin) at [31] by making but to “comparable cases where there is a statutory appeal no order for costs against an unsuccessful local authority from a decision of the Local Authority and the court has respondent the “default” or “starting” position (which looks a broad discretion as to costs”. In Perinpanathan v City of rather like a presumption), and focusing on “substantial” Westminster Magistrates Court [2010] EWCA Civ 40 the Court hardship to the successful party if no order is made. of Appeal approved its general application in licensing cases (at [40]). Stanley Burnton L J included amongst a summary of Those seeking costs against a local authority which has principles the following: not acted unreasonably or in bad faith might wish to remind themselves (and the costs awarding tribunal) of rejection by • Where the principle applies, and the party opposing Lord Bingham in Bradford v Booth at [22] of the suggestion the order sought by the public authority has been successful, that costs may only be awarded against authorities that have in relation to costs the starting point and default position is behaved in that manner. This point has been emphasised in that no order should be made. subsequent cases: see R (Borough of Telford and Wrekin) v Shrewsbury Crown Court [2003] EWHC 230 Admin per Moses J. • A successful private party to proceedings to which the at [16] (although “It is difficult to conceive of circumstances in principle applies may nonetheless be awarded all or part which it would be just and reasonable to award costs against of his costs if the conduct of the public authority in question an authority acting in a licensing capacity, unless there was justifies it. a good reason to do so.”); Crawley BC v Attenborough [2006] EWHC 1278 (Admin) (DC) per Scott Baker L.J. at [13]; and R • Other facts relevant to the exercise of the discretion (Cambridge City Council) v Alex Nestling Ltd (per Richards L J: conferred by the applicable procedural rules may also “Although as a matter of strict law the power of the court in justify an order for costs. It would not be sensible to try such circumstances to award costs is not confined to cases exhaustively to define such matters, and I do not propose where the Local Authority acted unreasonably and in bad to do so. faith, the fact that the Local Authority has acted reasonably and in good faith in the discharge of its public function is So far as the “financial prejudice” factor identified in plainly a most important factor.”). Bradford v Booth, Stanley Burnton L J in Perinpanathan said at [41]: Given that the costs discretion is exercised on all the circumstances of the case, costs decisions are highly fact- I think it clear that the financial prejudice necessarily specific, and only limited guidance can be gained from involved in litigation would not normally justify an order. If previously decided cases. With that health-warning duly that were not so, an order would be made in every case in delivered, here are 10 previously decided cases where the which the successful private party incurred legal costs. Lord public role of the unsuccessful local authority respondents Bingham LCJ had in mind a case in which the successful was considered. private party would suffer substantial hardship if no order for costs was made in his favour. R (Gorlov) v Institute of Chartered Accountants [2001] EWHC Admin 220 - irrational not to award costs in favour of As initially analysed Bradford v Booth merely identified appellant - per Jackson J. at [37]: certain specific factors, which, amongst all the circumstances of the case, the appellate court has to consider when The Institute is a professional body which, acting in the exercising its discretion as to costs. public interest, brings disciplinary proceedings against accountants. That is a factor which points against any So, it was held that Bradford v Booth does not establish automatic award of costs in disciplinary proceedings a presumption one way or the other: Law Society v Adcock which fail. The present case, however, has special features. [2006] EWHC 3212 (Admin) (DC) per Waller L.J. at [39]. Nor, The disciplinary proceedings brought by the Institute it was held, did it establish a “test” Perinpanathan v City of were a shambles from start to finish. … The conduct of Westminster Magistrates Court at first instance [2009] EWHC the Institute throughout the disciplinary proceedings was 762 (Admin) at [32] of course honest and well intentioned. That conduct was, however, misguided. Mistake was piled upon mistake. In However, it has been suggested that the Court of my view, the Institute’s conduct was unreasonable. Appeal’s decision in Perinpanathan has “strengthened” the
52 R (Swale BC) v Boulter [2002] EWHC 2306 (Admin) - Lovebox [2012] - costs order against local authority upheld; award of costs against local authority following dismissed it was unreasonable for sub-committee to have found that complaint in respect of a dangerous dog not upset on appeal dispersal from a festival caused significant disturbance to - magistrates reasons stated “we did not consider that it residents when the evidence it relied upon was generic in would be reasonable to order the Appellant to pay the full nature without linking to specific adverse events or incidents costs because of its role as a public authority in acting as or the evidence of a previous festival. prosecutor on behalf of members of the public. However, the complaint had been dismissed and it was proper that Luton BC v Zeb [2014] EWHC 732 (Admin) - award of £2,500 the unsuccessful party should pay a significant portion of the costs against respondent local authority not set aside - successful party’s costs.” although no financial evidence to support assertion of “substantial hardship” on part of successful appellant before Powell v The Chief Executive of the City and County of court, court had conscientiously considered merits of the Swansea [2003] EWHC 2185 (Admin) - per Pitchford J. at costs application on Bradford v Booth principles. The local [10] “the justices erred in concluding that the decision was authority should have appreciated that when witnesses made on grounds that reasonably appeared to be sound. In indicated their unwillingness to attend Crown Court, the view of their findings this was plainly a case for an award of original decision was unsustainable. costs, since the respondent had purported to apply to the applications a policy which it could not apply”. Chief Constable of Warwick Police v Young [2014] EWHC 4213 (Admin) - dangerous dogs case continued until shortly R (Uttlesford District Council) v English Heritage [2007] before trial despite defendant serving voluminous evidence EWHC 816 (Admin) per Pitchford J at [16] purpose of guidance that her dogs were not the ones which had attacked sheep, in Bradford v Booth was to draw attention to the public role and repeatedly inviting police to withdraw. Award of costs reposed in certain authorities whose position required against police upheld. careful consideration. Public nature of the role may or may not be critical in the balancing exercise, given the facts of The quirk in s 64(1) Magistrates’ Courts Act the case. Costs order not overturned - here a fully contested 1980 hearing was unnecessary, and had been caused by the local On appeals brought by complaint to the magistrates where authority’s refusal “to engage in useful negotiation on the no independent statutory costs awarding provision exists, so main issue which was resolved in favour of [the appellant]”. including appeals relating to private hire vehicle operator’s licences, the court’s costs discretion is found in s 64(1) Waveney DC v Lowestoft (North East Suffolk) Magistrates’ Magistrates’ Court Act 1980, which provides: Court, Witham Oil & Paint (Lowestoft) Ltd [2008] EWHC 3295 (Admin) - costs order against local authority not irrational On the hearing of a complaint, a magistrates’ court shall in circumstances where the council “had effectively not have power in its discretion to make such order as to costs— completely thrown their hand in, but just stood back and taken no active day-to-day part” and “had put up no effective (a) on making the order for which the complaint is made, resistance … but had not given up”. to be paid by the defendant to the complainant;
Ware v Hackney LBC [2009] EWHC 1698 (Admin) - costs (b) on dismissing the complaint, to be paid by the should have been ordered against local authority which complainant to the defendant, had “a fundamentally mistaken view of the way in which the statutory provision that was in fact engaged operated”. as it thinks just and reasonable; but if the complaint is for an order for the variation of an order for the periodic Tower Hamlets LBC v Ashburn Estates Ltd (Trading as the payment of money, or for the enforcement of such an order, Troxy) [2011] EWHC 3504 (Admin) - costs order against local the court may, whatever adjudication it makes, order either authority quashed as too much weight placed by district party to pay the whole or any part of the other’s costs. judge on the “ample time” the local authority had to consider offers of settlement “because of the time factor involved in It seems plain on its face that this a far more limited considering the compromise offer made, sensible though it discretion than that found in s 181 of the Licensing Act 2003, may have been, and because of all the competing interests which empowers the Magistrates Court hearing an appeal that would need to be considered in the evaluating of it. This under that Act to “make such order as to costs as it thinks fit. is not like an ordinary piece of civil litigation where it ought The s 64(1) regime only appears to encompass costs following to be possible to form a view about a settlement reasonably the event. quickly.” 53 How the costs system works
However, in Crawley BC v Attenborough, Scott-Baker L.J. The necessity for the appellate court to give said, obiter, that he saw “no practical distinction” between s reasons when awarding costs 64(1) and s 181 of the Licensing Act 2003. In Crawley BC v Attenborough, Scott-Baker L J indicated that the part of his decision in R v Stafford Crown Court, ex In Prasannan v Royal Borough Kensington and Chelsea p. Wilf Gilbert (Staffs) Ltd [1999] 2 All ER 955 where he said [2010] EWHC 319 (Admin) the successful appellant was that reasons for costs award need not be given should not nonetheless landed with a substantial adverse costs order now be followed. This accords with the modern approach of made under s 181 of the 2003 Act. She appealed by way of openness and transparency. case stating, gamely arguing that if there was “no practical distinction” between s 181 and s 64(1) of the 1980 Act as In Leeds City Council v Leeds District Magistrates [2013] Scott-Baker L J had said in Crawley, then there was no power EWHC 1346 (Admin), Supperstone J quashed an adverse to order her, the successful appellant, to pay the respondent’s costs order made against the local authority on the basis that costs. Perhaps unsurprisingly this argument got pretty short no reasons for the order were given. The decision to allow shrift from Belinda Bucknall QC, sitting as a Deputy High the appeal “does not begin to provide adequate reasons for Court Judge. the costs award that was subsequently made”.
But the issue remains that where s 64(1) governs the Time for payment scene, the costs order has to fit in to one of the two statutory Costs awards are civil debts, and advocates often jump up scenarios. In the recent appeal by Uber London Limited and tell the magistrates that they cannot give the paying against the refusal by Transport for London to renew its party time to pay, as they would with a fine. However, time to London private hire vehicle operator’s licence, the Chief pay is part of the general discretion under the CPR code and Magistrate allowed Uber’s appeal - it was, on one analysis, it seems odd that a costs order can be made which might be the successful party and obtained the order for which immediately enforceable. In my view there is scope to argue complaint was made. However, Uber wanted to pay, and TfL that the discretion of the Magistrate’s Court to award costs wanted to receive, TfL’s costs in the agreed sum of £495,000. includes a discretion to timetable the payment of those costs. The Chief Magistrate was persuaded to make this order on the basis (I paraphrase and summarise) that the complaint Non-party costs orders originally made was for a full five year licence, Uber initially The editors of Paterson’s Licensing Acts 2019 suggest [6.21] asserting that TfL’s decision was wrong, that position being that the wide discretion afforded to the appellate court in resisted by TfL, whereas what Uber received was a limited relation to costs includes a discretion to make costs orders “probationary” licence having accepted that TfL’s decision against non-parties, akin to that the well-established power was right. the civil court has to do the same.
There is no doubt that s 64(1) is unwieldly and overly A non-party costs order may be appropriate where an prescriptive given the modern approach to costs as codified appeal is brought by an impecunious corporate party to in CPR Part 44. Unless and until it is updated, it will continue further the interests of the persons behind that company, to strain lawyers’ ingenuity as to how an otherwise perfectly who, to reference William Wycherley, have adopted the sensible costs order might be made. position that someone without money has nothing more to fear from a crowd of lawyers than from a crowd of Appeal not proceeded with pickpockets. Section 52(3) of the Courts Act 1971 provides that where a complaint is made “but the complaint is not proceeded I understand that Westminster Council is one local with”, a Magistrates’ Court may make such order as to costs authority which has successfully obtained non-party costs to be paid by the complainant to the defendant as it thinks orders against those funding appeals. just and reasonable. Recent case-law has established that early warning of This is plainly - and sensibly - a wider discretion than is a potential non-party costs order to those affected is a found on s 64(1) of the 1980 Act, and indeed, used creatively, fundamental requirement to the subsequent making of might rescue some appeals from the straitjacket of s 64(1). such an order: Sony/ATV Music Publishing LLC v WPMC Ltd Might it be arguable, for instance, that Uber’s initial complaint [2018] EWCA Civ 2005. Accordingly, where a local authority was “not proceeded with”? respondent is faced with an appeal from an impecunious company and fears not being able to enforce a costs award, then early steps need to be taken establish for whose benefit
54 How the costs system works the appeal is brought so that they can be put on notice of the not engage in pre-action correspondence, raise duff issues, possibility of a non-party costs application against them. fight cases with extreme and unnecessary aggression or exaggerate the good points they have. An alternative which, so far as I am aware, remains untested is whether the width of the discretion in s 181 of the Attempting to narrow issues or compromise completely Licensing Act 2003 permits the Magistrates’ Court to require in without prejudice communications and meetings is never the provision of some sort of security for costs. This would be a bad idea. Remember that unless the communications an interesting argument. are expressed to be “without prejudice save as to costs” rather than simply “without prejudice” then they cannot ‘Participants’ be shown to the judge making the costs order without both R (Chief Constable of Nottinghamshire) v Nottingham parties’ consent. Rarely is there much point in labelling Magistrates Court [2009] EWHC 3182 (Admin) confirmed that communications simply “without prejudice”. It is good the Magistrates’ Court has an implied power to allow non- discipline to never mix up open correspondence with parties to participate in appeals - in that case, the non-party without prejudice correspondence. If in doubt, send two being the police, which was not a respondent to Tesco’s letters: the open letter dealing with the open issues and the appeal. “without prejudice save as to costs” letter dealing solely with settlement. Such persons are not joined to the proceedings as such, but participate, and - in general - should neither pay nor Preparing costs applications well in advance, including receive costs. It might be potentially feasible to obtain a non- detailed costs schedules with supporting representations, party costs order against a participant who by its conduct can pay dividends. It prevents complaint being made by the causes the actual parties to waste costs, although I am not other side that they are being ambushed, and puts the court personally aware of any examples of this. in the mind-set that costs is not some irritating loose end, but a substantial issue that needs to be determined. Some conclusions When preparing to sail out of the calm harbour of the “no Local authorities should not assume that Bradford v costs” first instance regime and into the potentially stormy Booth gives them automatic immunity. A licensing authority waters of the “costs risk” appellate regime, it is wise to take respondent that makes no attempt to review and assess the precautions. merits of an appeal as it progresses does so at its peril.
Treating the licensing appeal as if it was litigation subject And often, licensing authorities do not appreciate the full to the CPR is not a bad start. Not least, if you end up in the scope of recoverable costs that can be pursued, nor the steps High Court on appeal, you will have provided the Magistrates’ that can be taken when an impecunious appellant threatens Court with the right vocabulary and (hopefully) approach. a cost loss. The relevant provisions of the CPR are not complicated and provide a useful checklist that the court can be taken through Happy sailing! when (hopefully) contrasting the receiving party’s exemplary conduct with the paying party’s unhelpful behaviour. Charles Holland So, when it comes to costs, litigants that conduct Barrister, Trinity Chambers (Newcastle) and Francis Taylor themselves in such a manner as would avoid criticism on Building (Inner Temple) the CPR 44.2(5) checklist may fare better than those who do
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55 55 Public safety and event management review Considering those who may need additional help in the workplace There are many steps employers must take to ensure that staffor events visitors with disabilities or wellbeing issues are looked after properly, as Julia Sawyer explains
As an employer and a person minimum school leaving age (MSLA). Pupils will reach the in control of a premises or MSLA in the school year in which they turn 16. event the public comes to visit, you have a moral and Under the Management of Health and Safety at Work a legal duty to protect the Regulations 1999, an employer has a responsibility to ensure safety of your employees, to that young people employed by them are not exposed to risk ensure they are not put in a due to: vulnerable situation. • Lack of experience • Being unaware of existing or potential risks and / or The Health and Safety • Lack of maturity. Executive defines vulnerable workers as those who are at risk of having their workplace New or expectant mothers entitlements denied, or who lack the capacity or means to secure them. Specific laws relating to new and expectant mothers at work are mainly contained in the Management of Health and Those who could come into this definition include: Safety at Work Regulations 1999 (MHSW). These regulations • Agency / temporary workers require that the risk assessment should include any specific • New and expectant mothers risks to new and expectant mothers. These risks can be from • Migrant workers any process, working conditions, or physical, biological or • Disabled people chemical agents. • Older workers • Young people When an employee provides written notification to her • New staff. employer stating that she is pregnant, or that she has given birth within the past six months or that she is breastfeeding, Legal requirements the employer should immediately consider any risks Children and young people identified in their workplace risk assessment. If that risk assessment has identified any risks to the health and safety One of the licensing objectives under the Licensing Act 2003 is of a new or expectant mother, or that of her baby, and these “the protection of children from harm”, and guidance issued risks cannot be avoided by taking any necessary preventive under s 182 of the Licensing Act 2003 requires that children and protective measures under other relevant health and must be protected from “physical, psychological and moral safety legislation, then employers must act to remove, harm”. Premises allowing persons under the age of 18 are reduce or control the risk. expected to have systems in place to safeguard children and young people. The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide suitable rest facilities for Under health and safety law, every employer must ensure, workers who are pregnant or breastfeeding. The facilities so far as is reasonably practicable, the health and safety of should be suitably located (eg, near to toilets) and where all their employees, irrespective of age. As part of this, there necessary, employers should provide appropriate facilities are certain considerations that need to be made for young for the new or expectant mother to lie down. people – who are defined as:
• A young person is anyone under 18; and • A child is anyone who has not yet reached the official
56 Public safety and event management review
Guidance and other considerations • Involve employees and health and safety Mental health / stress in the workplace representatives in discussions about the risk and how best to make sure new starters are protected. Mental health / stress are reactions to events or experiences • Emphasise the importance of reporting accidents in someone’s home life or work life or a combination of both. and near misses. Common mental health problems can have a single cause • Make any necessary arrangements for health outside work, for example bereavement, divorce, postnatal surveillance. depression, a medical condition or a family history of the • If required, make sure suitable personal protective problem. But people can have these sorts of problems with equipment is provided and maintained without cost to the no obvious causes. employees. • Provide relevant information, instruction and Mental health training for line managers is essential training about the risks that new workers may be exposed and the training should include learning the signs of poor to and the precautions they will need to take to avoid those mental health and suicide risk. It should also consider the risks. likely impact of suicide on colleagues, public who visit your • Provide adequate supervision. Make sure workers premises or event and the business. Suicide is a complex know how to raise concerns and supervisors are familiar with issue. Although people with a diagnosed mental health the possible problems due to unfamiliarity and inexperience. condition are shown to be at higher risk of attempting • Check workers have understood the information, and completing suicide, many who take their own lives do instruction and training they need to work safely, and are not have a mental illness but are struggling to cope with a acting on it, especially during the vital first days/weeks personal event, or a set of problems that appears to have no at work. Remember to make sure workers know how and other solution. with whom they can raise any concerns about their health and safety and that they know about any emergency What should be considered? arrangements or procedures. Risk assessments should be reviewed on a regular basis to assess if any additional controls need to be introduced to Vulnerable people consider those with additional needs. As a manger or a person in control of an event or premises, you should assess whether there are adequate contingency New starters or young people plans in place to deal with a vulnerable person, such as someone who attends your event for warmth, company or Assess the new starter’s capabilities in terms of: has suicidal thoughts. Consider, is there a nominated person • Literacy and numeracy levels trained to deal with the vulnerable? Do the Operations team • General health members understand and recognise any indicators that • Relevant work experience would alert them to put in place the contingency plan for • Physical capability to do the job dealing with a vulnerable person? • Familiarity with the work being done and the working environment (especially where conditions change Contingency plans rapidly, such as at a festival or on construction sites) • Any cultural or language issues. Emergency procedures and contingency plans should be written and communicated to all the relevant people who Provide an induction. Plan it carefully, including photos of would be involved in the implementation of them. hazards where possible, and use plain, simple language. Take time to walk around the workplace or site with new workers PEEP and show them where the main potential hazards exist (eg, falls, slips and transport). A PEEP is a Personal Emergency Evacuation Plan. It is a bespoke “escape plan” for individuals who may not be able to Communication reach a place of safety unaided and quickly in an emergency. Make sure the control measures to protect against risk are up to date and are being properly used and maintained – and PEEPs may be required for people with: communicated to staff. This could include taking steps to: • Mobility impairments • Sight impairments
57 Public safety and event management review
• Hearing impairments when policies and procedures are established or someone • Cognitive impairments new to the building / event requires additional controls to • Other disabilities. maintain their safety.
A temporary PEEP may be required for: Those in a managerial position, or specifically nominated, should be trained to recognise signs of potential problems • Short term injuries (eg, broken leg) and understand what measures need to be taken to protect • Temporary medical conditions those around them. • Those in the later stages of pregnancy. Adequate contingency plans and good communication The underlying question in deciding whether a PEEP is are key to ensure an incident is dealt with appropriately in a necessary is “can you evacuate the building unaided, in a workplace. Each situation will be different and the effect that prompt manner, during an emergency?” If the answer is “no”, it has on the immediate work force and those around them then it is likely that a PEEP is needed. will vary considerably. It takes trained and competent people to manage these incidents. Conclusion Employers putting on events or working in the entertainment Julia Sawyer industry need to recognise that they should apply additional Director, JS Safety Consultancy controls to protect those people who may be in a vulnerable position. The needs of vulnerable people should be considered in the planning and design of a workplace when a building or an event first opens and should be re-assessed
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58 Taxi licensing: law and procedure update [2] Taxi and private hire vehicle licensing - Steps towards a safer and more robust system James Button considers the Government’s long-awaited thoughts on taxi reform, and finds them singularly lacking
Readers will recall the report response. of the Ministerial Working To fully understand the Government’s position, it is Party (now referred to as the necessary to restate the Recommendations Task and Finish Group on Taxi and Private Hire Vehicle Recommendation 1 Licensing-TFG) detailed in Notwithstanding the specific recommendations made the November Journal, and below, taxi and PHV legislation should be urgently revised we finally have the response to provide a safe, clear and up to date structure that can from the Government. Despite effectively regulate the two-tier trade as it is now. an upbeat announcement by Nusrat Ghani, Parliamentary Government response Under Secretary of State for Transport, it seems clear that “We agree that the regulation of taxis and private hire vehicles there is no heartfelt commitment to updating the law in a needs reform” (para 2.1); but “In the short term this does not comprehensive fashion. include a full replacement of the law which regulates taxi and private hire.” (Para 2.3.) This is a half-hearted response to a very sensible and well considered set of proposals and must be regarded as a Comment missed opportunity. This sums up the situation. Despite a call for evidence for Get involved in your region! the TFG, and a considered report, there is simply not the In short, the Government’s position is detailed in the political will to reform the law governing this vital sector of summary (chapter 1): the economy, and if public safety is not a sufficient driving factor, it is difficult o see what will be. Above all other considerations the TFG has put the passenger at the heart of its thinking; we welcome and Recommendation 2 share this view. Government will take action where needed Government should legislate for national minimum to ensure a safe and well-functioning sector which meets standards for taxi and PHV licensing - for drivers, vehicles the needs and expectations of its passengers. and operators (see recommendation 6). The national . . . minimum standards that relate to the personal safety of The Government accepts the three key measures passengers must be set at a level to ensure a high minimum recommended to achieve a safe service for passengers: safety standard across every authority in England. • National Minimum Standards • National Enforcement Powers; and Government must convene a panel of regulators, • A National Licensing Database. passenger safety groups and operator representatives to determine the national minimum safety standards. These matters are considered further in the Licensing authorities should, however, be able to set accompanying article covering the Consultation on the s 177 additional higher standards in safety and all other aspects Statutory Guidance (see pages 72). depending on the requirements of the local areas if they wish to do so. However, as the TFG report made 34 recommendations, Government response it can be seen that a commitment (but only via Guidance “The Government agrees that there should be national at this stage) to fewer than 10% of those is at best a miserly minimum standards for taxi and PHV licensing, and will take
59 Taxi licensing: law and procedure update [2] forward legislation when time allows to enable these.” (Para Government having encouraged such joint working 2.4.) to build capacity and effectiveness, working with the Local Government Association, should review progress in And, “In the interim, Government will continue to review nonmetropolitan areas over the next three years. its statutory and best practice guidance. The development of these, through engagement and consultation, will ultimately Government response shape the content of national minimum standards.” (Para “The Government agrees that collaboration and joint working 2.6.) can be helpful in ensuring efficient operation of taxi and PHV licensing in smaller local authorities. The Government will Comment keep progress in this area under review.” When will time allow? In the meantime, using Guidance is a poor substitute. Comment Unfortunately, “keeping a matter under review” always seem Recommendation 3 to be a euphemism for kicking it into the long grass. Government should urgently update its Best Practice Guidance. To achieve greater consistency in advance of Recommendation 5 national minimum standards, licensing authorities should As the law stands, ‘plying for hire’ is difficult to prove and only deviate from the recommendations in exceptional requires significant enforcement resources. Technological circumstances. In this event licensing authorities should advancement has blurred the distinction between the publish the rationale for this decision. two trades.
Where aspects of licensing are not covered by guidance Government should introduce a statutory definition nor national minimum standards, or where there is a desire of both ‘plying for hire’ and ‘pre-booked’ in order to to go above and beyond the national minimum standard, maintain the two-tier system. This definition should licensing authorities should aspire to collaborate with include reviewing the use of technology and vehicle adjoining areas to reduce variations in driver, vehicle and ‘clustering’ as well as ensuring taxis retain the sole right operator requirements. Such action is particularly, but to be hailed on streets or at ranks. not exclusively, important within city regions. Government should convene a panel of regulatory Government response experts to explore and draft the d finition. “The Government welcomes this recommendation.” (Para 2.8.) Government response “This matter was the subject of specific consideration by the And, “the Department is for the first time consulting on Law Commission in the course of its review. The Commission statutory guidance to be issued to licensing authorities ultimately concluded that a statutory definition of plying for which details the Department’s view of how their functions hire would not be a practical improvement on the current may be exercised so as to protect children and vulnerable position.” (Para 2.11.) adults from harm.” (Para 2.9.) And, “We have no reason to believe that the legal situation Comment has changed since 2014, and thus no reason to believe that This does not address the recommendation, because there a new or reconvened expert panel would reach a different is no indication when there will be revised Best Practice conclusion. As a result, the Government does not intend to Guidance. The s 177 Guidance is very limited in its scope take this recommendation forward at this time.” (Para 2.12.) when compared to the Best Practice Guidance Comment Recommendation 4 This definitely seems like a “this is too difficult” response. In the short-term, large urban areas, notably those No-one thinks it would be easy, but it is one of the biggest that have metro mayors, should emulate the model problems facing the industry, and by extension, public safety. of licensing which currently exists in London and be combined into one licensing area. In non-metropolitan areas collaboration and joint working between smaller Recommendation 6 authorities should become the norm. Government should require companies that act as intermediaries between passengers and taxi drivers to
60 Taxi licensing: law and procedure update [2] meet the same licensing requirements and obligations as set a cap on the number of taxi and PHVs they license. PHV operators, as this may provide additional safety for passengers (eg, though greater traceability). This can help authorities to solve challenges around congestion, air quality and parking and ensure appropriate Government response provision of taxi and private hire services for passengers, “PHV operators, and companies that act as intermediaries for while maintaining drivers’ working conditions. taxi bookings, do perform functions that appear very similar. However, the Government is not convinced that there is a Government response compelling case for the licensing of taxi intermediaries (such “The Government does not propose to take this as taxi apps or radio circuits).” (Para 2.13.) recommendation forward. We would instead wish to see local authorities make the most use of existing powers to And, “An operator is fundamental to the booking of a address air quality and congestion issues.” (Para 2.24.) PHV, and so has a distinct and legally necessary role in the regulatory system. Conversely, when a taxi is requested via Comment an intermediary, that intermediary is doing nothing more This simply places the onus on local authorities. The blunt than passengers could do themselves - they merely convey and unrealistic “significant unmet demand” test for hackney the request from the passenger to a taxi driver.” (Para 2.14.) carriage numbers and a very variable emissions test for private hire vehicles. It is as far removed from any concept of Comment national standards as it could be. This is frankly disingenuous. An operator is integral to the private hire regime simply to differentiate private hire from Recommendation 9 hackney carriages, and as a statutory requirement, but they All licensing authorities should use their existing powers hold vital and sometimes personal and sensitive information. to make it a condition of licensing that drivers cooperate A booking intermediary for HC’s fulfils the same role, and with requests from authorised compliance offi ers in as it is being undertaken on a commercial basis, it is quite other areas. Where a driver fails to comply with this different from a passenger making the same booking. requirement enforcement action should be taken as if the driver has failed to comply with the same request from an Recommendation 7 offi er of the issuing authority. Central Government and licensing authorities should ‘level the playing field’ by mitigating additional costs Government response faced by the trade where a wider social benefit is provided “We are aware of a number of authorities that already have – for example, where a wheelchair accessible and/or zero this requirement as part of their licensing conditions and we emission capable vehicle is made available. would encourage other licensing authorities to do so too.” (Para 2.26.) Government response “For zero-emission capable vehicles, the Government Comment provides the plug-in car grant and the plug-in taxi grant.” That’s fine in theory for private hire drivers, but a local (Para 2.17.) But, “The Government does not propose to authority cannot attach conditions to hackney carriage introduce further financial incentives for taxis and PHVs drivers’ licences, and out of district hackney carriages are a based on vehicle type at the current time; however we will significant problem. keep this under review.” (Para 2.19.) Recommendation 10 Comment Legislation should be brought forward to enable Unfortunately, this simply does not address the financial authorities to carry out enforcement and compliance realities of purchasing (or leasing) and then running checks and take appropriate action against any taxi or wheelchair accessible vehicles, and as a result disabled PHV in their area that is in breach of national minimum passengers will continue to be disadvantaged, which is standards (recommendation 2) or the requirement that all disgraceful. See above for comments on keeping matters taxi and PHV journeys should start and/or end within the under review. area that issued the relevant licences (recommendation 11). Recommendation 8 Government should legislate to allow local authorities, Government response where a need is proven through a public interest test, to “The Government agrees that there should be national
61 Taxi licensing: law and procedure update [2] enforcement against the national minimum standards that body and undertake a review of their licensing fees to recover will be introduced in response to recommendation two, and the permissible costs and no more of providing this.” (Para will legislate for this when time allows.” (Para 2.27.) 2.36.)
Comment Comment Again, legislation when time allows . . . This is perhaps the most irritating response in the whole document. As enforcement costs for drivers and operators Recommendation 11 cannot be recovered via the licence fee, it doesn’t matter how Government should legislate that all taxi and PHV efficient and effective the procedures are, a significant cost of journeys should start and/or end within the area for the hackney carriage and licensing regime must be funded by which the driver, vehicle and operator (PHV and taxi – see council tax payers. recommendation 6) are licensed. Recommendation 13 Appropriate measures should be in place to allow Legislation should be introduced by the Government as specialist services such as chauffeur and disability a matter of urgency to enable Transport for London to transport services to continue to operate cross border. regulate the operation of pedicabs in London.
Operators should not be restricted from applying for Government response and holding licences with multiple authorities, subject to “The Government fully supports this recommendation” (para them meeting both national standards and any additional 2.37); “The Government has worked with TfL to support the requirements imposed by the relevant licensing authority. Pedicabs (London) Private Members’ Bill brought forward by Paul Scully MP.” (Para 2.39) Government response “We acknowledge the view that national minimum standards And, “Should [that] not become law, the Government will will go some way towards resolving that problem.” (Para put forward its own legislation when time permits to enable 2.33.) TfL to regulate pedicabs.” (Para 2.40.)
“Even with national minimum standards in place, there will Comment still be variations in licensing conditions.” (Para 2.34.) Support for a Private Members’ Bill is always welcome, but if that does not succeed, we are back to “when time permits”. But, “Government therefore agrees with the principle of this recommendation, and will consider further (with a view to Recommendation 14 legislation) how it might best work in detail.” (Para 2.35.) The Department for Transport and Transport for London should work together to enable the issue of Fixed Comment Penalty Notices for both minor taxi and PHV compliance It remains to be seen what any proposed legislation may failings. The Department for Transport should introduce suggest (not to mention when that may be forthcoming), legislation to provide all licensing authorities with the but it is an area of considerable controversy and may prove same powers. difficult o frame acceptable proposals. Government response Recommendation 12 “We will engage with licensing authorities to establish if Licensing authorities should ensure that their licensing, there is significant demand for a power to issue fixed penalty administration and enforcement functions are adequately notices outside of London to assist in the enforcement of resourced, setting fees at an appropriate level to enable national minimum standards.” (Para 2.43.) this. Comment Government response Surely this should not only be for the (at present mythical) “The prime reason for regulation of taxis and PHVs is to national minimum standards, but for all HC and PH offences. protect the public and licensing authorities must ensure that this function is sufficiently resourced to do so. We therefore Recommendation 15 urge licensing authorities to ensure that they have efficient All ridesharing services should explicitly gain the and effective procedures in place to minimise the cost to the informed consent of passengers at the time of a booking trade of establishing a robust and well-resourced licensing and commencement of a journey.
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Government response statutory guidance which accompanies this response.” (Para “Government supports choice for consumers but this must 3.5.) be an informed choice. . . operators should ensure their systems make it entirely clear to passengers when they are Comment engaging a shared service. Licensing authorities may wish to The full proposal is considered in the DraftStatutory Guidance ensure that their operator licensing conditions make clear - see the accompanying article for full details (page 72). that operators must do this.” (Para 2.45.) Recommendation 18 Comment As Government and local authorities would benefit from … which might work for private hire, but ignores ridesharing a reduction in crime in licensed vehicles both should in hackney carriages. consider ways in which the costs to small businesses of installing CCTV can be mitigated. Recommendation 16 The Department for Transport must as a matter of urgency Government response press ahead with consultation on a draft of its Statutory “The cost of installing a CCTV system is similar to a Guidance to local licensing authorities. The guidance replacement set of tyres for a vehicle; as such we do not must be explicit in its expectations of what licensing consider subsidising of these additional costs is necessary.” authorities should be doing to safeguard vulnerable (Para 3.10.) passengers. The effectiveness of the guidance must be monitored in advance of legislation on national minimum Comment standards. OK, but tyres are a mandatory requirement, whereas CCTV is not. How many proprietors will consider the safety aspects Government response over the cost? “The . . . draftstatutory guidance . . . has now been published for consultation alongside this response.” (Para 3.4.) Recommendation 19 National standards must set requirements to assist Comment the public in distinguishing between taxis, PHVs and Finally! Section 177 Policing and Crime Act became effective unlicensed vehicles. These should require drivers to on 31 January 2017. The fact that it has taken more than two have on display (e.g. a clearly visible badge or arm- years for the Government to even commence consultation band providing) relevant details to assist the passengers on the Statutory Guidance calls in to question how important in identifying that they are appropriately licensed eg, they consider it to be. photograph of the driver and licence type, ie, immediate hire or pre-booked only. Recommendation 17 In the interests of passenger safety, particularly in the All PHVs must be required to provide information to light of events in towns and cities like Rochdale, Oxford, passengers including driver photo ID and the vehicle Newcastle and Rotherham, all licensed vehicles must be licence number, in advance of a journey. This would fitted with CCTV (visual and audio) subject to strict data enable all passengers to share information with others protection measures.Licensing authorities must use their in advance of their journey. For passengers who cannot existing power to mandate this ahead of inclusion in receive the relevant information via digital means this national minimum standards. information should be available through other means before passengers get into the vehicle. To support greater consistency in licensing, potentially reduce costs and assist greater out of area compliance, Government response the Government must set out in guidance the standards “The Government will consider what vehicle and driver and specifications of CCTV systems for use in taxis and identification requirements should be included within PHVs. These must then be introduced on a mandatory national minimum requirements, focussing on supporting basis as part of national minimum standards. safety. Over and above national minimum standards, local considerations (particularly in respect of vehicle licensing conditions) will remain important.” (Para 3.14.) Government response “The Government’s view on the use of CCTV in taxis and Comment private hire vehicles is set out in the consultation on draft Again, this is dependent on National Minimum Standards.
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Recommendation 20 other law enforcement agencies when considering whether All drivers must be subject to enhanced DBS and barred information should be disclosed or not for inclusion in lists checks. Licensing authorities should use their Enhanced Disclosure and Barring Service certificates. This existing power to mandate this ahead of inclusion as part is overseen by the National Police Chiefs’ Council (NPCC) as of national minimum standards. it relates to the statutory police role within the disclosure regime.” (Para 3.20.) All licensing authorities must require drivers to subscribe to the DBS update service and DBS checks should must be “Under Common Law Police Disclosure provisions carried out at a minimum of every six months. Licensing (CLPD), the police can use their common law powers for the authorities must use their existing power to mandate this prevention and detection of crime to proactively provide ahead of inclusion as part of national standards. police intelligence or information to a third party (such as a licensing authority) where there is a public protection risk, Government response to allow them to act swiftly to mitigate any danger. It is for “The Government agrees with both parts of this Chief Police Offi ers to locally determine the implementation recommendation, and they are included in the statutory of CLPD provisions.” (Para 3.21.) guidance which has been issued for consultation alongside this response. In the longer term, they will be considered as And, “Government will discuss the provision of information part of national minimum standards.” (Para 3.15.) with the NPCC with a view to ensuring that appropriate steps are being taken to provide relevant information to licensing Comment authorities.” (Para 3.22.) The full proposal is considered in the DraftStatutory Guidance - see the accompanying article for full details. Again, this is Comment dependant ultimately on National Minimum Standards. This is a fundamental problem, with plenty of evidence obtained by the IoL that the system is not working, and vital Recommendation 21 safeguarding information is not being provided by the police, Government must issue guidance, as a matter of urgency, either in a timely fashion or at all. It is to be hoped that the that clearly specifies convictions that it considers should Government’s “discussion” with the NPCC takes place rapidly be grounds for refusal or revocation of driver licences and is immediately productive. and the period for which these exclusions should apply. Licensing authorities must align their existing policies to Recommendation 23 this ahead of inclusion in national minimum standards. All licensing authorities must use the National Anti-Fraud Network (NAFN) register of drivers who have been refused Government response or had revoked taxi or PHV driver licence. All those cases “The Government agrees with this recommendation, and its must be recorded, and the database checked for all view has been included in the statutory guidance which has licence applications and renewals. Licensing authorities been issued for consultation alongside this response.” (Para must record the reasons for any refusal, suspension 3.18.) or revocation and provide those to other authorities as appropriate. The Government must, as a matter Comment of urgency, bring forward legislation to mandate this The full proposal (based firmly on the IoL Guidelines on alongside a national licensing database (recommendation Suitability) is considered in the Draft Statutory Guidance - see 24). the accompanying article for full details. Government response Recommendation 22 “The Government supports the Private Member’s Bill The Quality Assurance Framework and Common Law brought by Daniel Zeichner MP that would mandate licensing Police Disclosure Provisions must be reviewed to authorities to use such a database. The Government also ensure as much relevant information of conduct as well welcomes the initiative of the LGA in setting up a voluntary as crimes, by taxi and PHV drivers (and applicants) is database of drivers who have been refused or revoked disclosed ensuring that licensing authorities are informed licences.”(Para 3.24.) immediately of any relevant incidents. Government response And, “In the longer term, the Government intends that “The Quality Assurance Framework (QAF) is the decision- information about drivers who have had licences refused making tool used by the Disclosure Units of police and or revoked would be one part of the wider-ranging national
64 Taxi licensing: law and procedure update [2] database discussed against the next recommendation.” (Para Government response 3.25.) “The draft statutory guidance which has been published for consultation alongside this response recommends that those Comment charged with determining taxi and PHV licensing matters As the Government states it will legislate for a national undertake appropriate training.” (Para 3.33.) database (see below) this is a welcome development, and the statutory database is eagerly awaited. And, “In the longer term the Government intends that the requirement for training would be included in national Recommendation 24 minimum standards.” (Para 3.34.) As a matter of urgency Government must establish a mandatory national database of all licensed taxi and Comment PHV drivers, vehicles and operators, to support stronger The full proposal is considered in the DraftStatutory Guidance enforcement. - see the accompanying article for full details. Again, this is dependant ultimately on National Minimum Standards. Government response “Government will legislate for the creation of a national taxi Recommendation 27 and private hire database, as a necessary accompaniment to Government must review the assessment process of national enforcement powers.” (Para 3.26.) passenger carrying vehicle (PCV) licensed drivers and/ or consideration of the appropriate boundary between Comment taxis/PHVs and public service vehicles (PSVs). Excellent, and no caveat that this will only happen “when time allows”. Let us hope it is very soon. Government response “Where PHV operators also hold a PSV operator’s licence, Recommendation 25 PSVs should not be used Licensing authorities must use their existing powers to to fulfil bookings except with the informed consent of the require all drivers to undertake safeguarding/child sexual hirer.” (Para 3.37.) abuse and exploitation awareness training including the positive role that taxi/PHV drivers can play in spotting Comment and reporting signs of abuse and neglect of vulnerable This is a sensible suggestion, but it does require a great deal passengers. This requirement must form part of future of knowledge of the systems on the part of the hirer to ask national minimum standards. the correct questions to enable that informed choice to be made. Government response “The draft statutory guidance which has been issued for Recommendation 28 consultation alongside this Licensing authorities must require that all drivers are response includes a recommendation that licensees should able to communicate in English orally and in writing to a be required to undertake safeguarding / child sexual abuse standard that is required to fulfil their duties, including in and exploitation awareness training.” (Para 3.30.) emergency and other challenging situations.
And, “In the longer term, the Government intends that This is also vital, and it is disappointing that it needs to this requirement would be included in national minimum be said. As HC/PHV drivers are both providing a service, standards.” (Para 3.31.) and also placed in positions of great responsibility, the ability to communicate readily with passengers and Comment others is essential. The full proposal is considered in the DraftStatutory Guidance - see the accompanying article for full details. Again, this is Government response dependant ultimately on National Minimum Standards. “The draft statutory guidance which has been issued for consultation alongside this response recommends that Recommendation 26 licensing authorities require an English assessment (oral and All individuals involved in the licensing decision making written) for their licensees.” (Para 3.40.) And, “In the longer process (officials and councillors) must be obliged to term, Governments intends that this requirement would be undertake appropriate training. The content of the included in national minimum standards.” (Para 3.41.) training must form part of national minimum standards.
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Comment do nothing to improve the provision of WAV in areas which The full proposal is considered in the DraftStatutory Guidance currently have very few such vehicles. - see the accompanying article for full details. Again, this is dependant ultimately on National Minimum Standards. Recommendation 31 Licensing authorities which have not already done so Recommendation 29 should set up lists of wheelchair accessible vehicles All licensing authorities should use their existing powers (WAVs) in compliance with s 167 of the Equality Act 2010, to require that the taxi and PHV drivers they license to ensure that passengers receive the protections which undergo disability quality and awareness training. This this provides. should be mandated in national minimum standards. Government response Government response “[The] Government [will] continue to encourage local “The Government supports this recommendation. . . ” (Para licensing authorities, which have not already done so, to 4.1); “ . . .the Inclusive publish lists of taxis and PHVs designated as wheelchair Transport Strategy . . . includes a commitment to consult on accessible under Section 167 of the Equality Act 2010, and to updated best practice guidance which should better support inform the Department that they have done so.” (Para 4.10.) licensing authorities to use their existing powers.” (Para 4.3.) Comment And, “In the longer term the Government intends that these It is difficult to see why this requirement is not mandatory, training requirements will be included in national minimum and this response will do little to increase the numbers of standards.” (Para 4.4.) authorities that publish such lists.
Comment Recommendation 32 A commitment to consult on revised Best Practice Guidance Licensing authorities should use their existing is not much of a commitment, when the consultation has enforcement powers to take strong action where disability been mooted since 2015. Again, this is dependant ultimately access refusals are reported, to deter future cases. They on National Minimum Standards. should also ensure their systems and processes make it as easy as possible to report disability access refusals. Recommendation 30 Licensing authorities that have low levels of wheelchair Government response accessible vehicles (WAVs) in their taxi and PHV fleet should “The Government agrees that those that refuse to meet their ascertain if there is unmet demand for these vehicles. In legal obligation under ss 168 and 170 of the Equality Act 2010 areas with unmet demand licensing authorities should should be subject to enforcement action. We have stated in consider how existing powers could be used to address the Inclusive Transport Strategy that licensing authorities this, including making it mandatory to have a minimum should use the powers available to them, and take robust number of their fleet that are WAVs. As a matter of action against those who have discriminated illegally against urgency, the Government’s Best Practice Guidance should disabled passengers.” (Para 4.13.) be revised to make appropriate recommendations to support this objective. Comment This is a good response and supports the work already being Government response undertaken by several local authorities. “We will write to all local licensing authorities stressing the importance of supporting an inclusive taxi and PHV fleet.” Recommendation 33 (Para 4.7.) The low pay and exploitation of some, but not all, drivers is a source of concern. Licensing authorities should take And, “We will continue to monitor the proportion of WAVs into account any evidence of a person or business flouting within overall taxi and PHV fleets, . . . and to seek clarification employment law, and with it the integrity of the National from authorities as to the steps they are taking to assess and Living Wage, as part of their test of whether that person or respond to the local need for such vehicles.” (Para 4.8.) business is “fit and proper” to be a PHV or taxi operator.
Comment Government response Although assessing demand (met or unmet) for WAV may be “ . . . the Government agrees that the decisions of tribunals, difficul , it must be possible. This is a response which will and whether an operator concerned is complying with a
66 Taxi licensing: law and procedure update [2] ruling in the way the law requires, should Comment reasonably be considered by a licensing authority as part of This is at least a hint that the Government is prepared to the ‘fit and proper’ test for a PHV operator.” (Para 5.2.) consider the question of working hours, although how effective the informal engagement may be remains to be Comment seen. This is a useful response and ties in with the wider approach to the fitness and propriety of operators advocated by the IoL Conclusion in the Suitability Guidance. Overall this is a disappointing response. The TFG report was well considered and made sensible recommendations Recommendation 34 that were, in many cases, readily achievable with minimal Government should urgently review the evidence and legislative alteration. Although the responses to the report case for restricting the number of hours that taxi and PHV and the proposed guidance do take some matters forward, drivers can drive, on the same safety grounds that restrict it really does fall short of expectations and will ultimately hours for bus and lorry drivers. be filed in the annals of futile attempts to reform hackney carriage and private hire licensing. Government response “In the first instance, in order to assess the scale of the James Button CIoL issue, the Government will engage informally with sector Principal, James Button & Co Solicitors stakeholders to determine whether it is possible to more accurately assess the hours drivers are working, and whether there is a trend for working more or excessive hours. The Government is mindful not just of road safety, but also of the need to avoid burdensome, yet difficult to enforce, regulation.” (Para 5.6.)
Taxi Conference Sheffield - 9 July 2019 Swindon - 8 October 2019 The IoL are hosting two Taxi Conference events “This was an excellent conference packed full of this year. useful information from some speakers with real experience in the field.” The first event will take place in Sheffield on 9 July and the other will take place in Swindon on We are in the process of finalising the agenda and 8 October. full details will be released soon! We will have a host of speakers on a range on topics. These events are being held due to the success of our taxi conferences last year. Training Fees
Some feedback from last year’s delegates: £130 + VAT for IoL Members £210 + VAT for non-members “An excellent selection of speakers at the top of (The non-member fee includes complimentary their game! Enjoyable as well as educational.” “A individual membership until end March 2020.) thoroughly fantastic day a lot of content most informative and interesting.”
67 Taxi licensing: law and procedure update [3] Statutory Guidance - consultation The Government has finally produced the long-awaited consultation on the Statutory Guidance made under s 177 of the Policing and Crime Act 2017. James Button assesses the most important sections
Consultation on the Statutory Guidance made under s 177 The remainder of this section explains the justification for of the Policing and Crime Act 2017 takes place until 22 April this statement, which must be beyond question. (Paras 2.9 (although an earlier date of 8 April is mentioned on page to 2.13.) 11 of the initial consultation document). The consultation document itself is lengthy, being some 36 pages in length of Fit and proper test which 29 comprise the Statutory Guidance, which begins on For the first time there is Guidance on the concept of a driver’s page seven. fitness and propriety with the following suggested question to be asked of any applicant or existing licensee: It is explained in Para 1.8 that the Statutory Guidance will replace relevant sections of the Best Practice Guidance Without any prejudice, and based on the information which dates from 2010. Unfortunately it does not make clear before you, would you allow a person for whom you care, which sections will be replaced, and this will probably not regardless of their condition, to travel alone in a vehicle become clear until consultation takes place on the revised driven by this person at any time of day or night? Best Practice Guidance, which is promised “once the final Statutory Guidance has been issued”. It is difficult to see any This is reinforced by an explanation that in cases of compelling reason why the Statutory Guidance and the Best uncertainty the applicant or licensee should not be given the Practice Guidance cannot be combined into one document, benefit of the doubt. and consultation on that take place at the same time. Multiple documents simply lead to more opportunities for confusion This will no doubt assist decision makers and is not and uncertainty. dissimilar from the test which is widely used by local authorities, which has been suggested by Button on Taxis for Turning to the Guidance itself, it covers 29 topics with two the last 20 years. (Paras 2.14 to 2.16.) additional annexes. These are considered individually below. The response form (available online at https://www.gov.uk/ Administration of the licensing framework government/consultations/taxi-and-private-hire-vehicle- This section advocates training for councillors involved in taxi licensing-protecting-users and as hard copy) contains 34 licensing decisions, which is to be applauded. It also suggests questions. that decision-making on contentious matters should remain with councillors, rather than being delegated to offi ers. Consideration of the Statutory Guidance However it does make a strange claim at paragraph 2.21 that: This section makes it clear that the Department for Transport expects every licensing authority to comply with It is rare for the same councillors to be involved in frequent the Guidance, although this carries the usual corollary that hearings – therefore the councillors involved in the decision ultimately decisions are a matter for each individual local making process will have less knowledge of previous authority. (Paras 2.1 to 2.8.) decisions and therefore are less likely to be influenced by them. Oversight and scrutiny can be provided in relation Licensing policy to the licensing service generally, which can provide The Department encourages licensing authorities to create independent and impartial oversight of the way that the a cohesive policy document that brings together all their functions are being discharged within the authority. procedures on taxi and PHV licensing. Experiences with local authorities suggest that in many This should include but not be limited to policies on cases it is actually a very small number of members who convictions, a ‘fit and proper’ person test, licence conditions regularly sit to determine matters relating to hackney and vehicle standards. (Para 2.9.) And, “When formulating a carriage and private hire drivers. (Paras 2.17 to 2.24.) taxi and PHV policy, the primary and overriding objective must be to protect the public.” (Para 2.10.)
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Whistleblowing byelaws. As the experience of local authorities over the last Drawing in particular on occurrences at South Ribble Borough decade makes it clear that the DfT is not prepared to depart Council, the Guidance requires local authorities to have from the model byelaws, this is going to be impossible to effective whistleblowing policies, and suitable procedures to implement. (Paras 2.41 and 2.42.) enable staff to raise concerns, and for those to be dealt with openly and fairly. (Paras 2.25 to 2.28.) Referrals to DBS and the police This is an important update making local authorities aware Implementing changes to licensing policy that in certain circumstances information that they hold can and requirements be provided to the DBS. This will tie in with the proposed This makes clear that any changes in licensing requirements national database as a significant method of improving should lead to a reconsideration of existing licences in the dissemination of vital information. (Paras 2.43 to 2.46.) light of the new requirements. (Paras 2.29 and 2.30.) Overseas convictions The Disclosure and Barring Service This reinforces the position in relation to overseas convictions This reinforces the very important suggestion that all and is a useful reminder of the Home Offi e Guidance. (Paras hackney carriage and private hire drivers should be required 2.47 and 2.48.) to produce an enhanced DBS certificate with a check of the barred lists. It seems all local authorities require an Conviction policy + Annex A enhanced DBS check for drivers, but many do not currently This builds upon the existing Best Practice Guidance check the barred lists. When the role of a driver is properly (paragraph 59), and by virtue of Annex A, incorporates considered, it becomes crystal clear that this is a vital public much of the “Guidance on Determination” (chapter 4) of safety consideration. (Paras 2.31 to 2.37.) the Guidance on determining the suitability of applicants and licensees in the hackney and private hire trades published DBS update service by the Institute of Licensing in association with the LGA, Licensing authorities should make use of the DBS update NALEO and LLG. This is to be welcomed, and is a welcome service and require drivers to consent to allowing the endorsement of that work, but it must be recognised that authority to regularly check the DBS database. This section Annex A does not reproduce those proposals completely. In also makes clear what should be entered on a DBS application relation to motoring convictions they have departed from the to ensure a check of the adult and children barred lists: IoL proposals, and although they retain the same approach to drink-driving and the use of mobile telephones, they make Other Workforce should always be entered at X61 line 1 and no mention of major or minor motoring offences, hackney Taxi Licensing should be entered at X61 line 2. carriage and private hire offences and other vehicle-use offences. Although this is not new, and many authorities have been undertaking this for some time, it is reassuring that the They suggest the same criteria should apply to operators Guidance now makes it crystal clear that this should be seen (but discounting driving convictions) but no mention is made as a mandatory requirement. (Paras 2.38 to 2.40.) of the suggestion in the Suitability Guidance that the same criteria should apply to vehicle proprietors. Licensee self-reporting This suggests requiring licensees to notify the licensing As a consequence, while Annex A is to be welcomed, and is authority “within 48 hours of an arrest and release, charge or a major improvement on the 25-year-old Annex D attached conviction of any motoring offence,or any offence involving to DoT Circular 2/92, it falls short of being a comprehensive dishonesty, indecency or violence” which would then result model convictions policy, and leaves scope for significant in a review of the licence. variations between licensing authorities. (Paras 2.49 and 2.50.) This is possible for private hire drivers where a condition can be attached to the licence, and it will also work for Common law police disclosure holders of dual licences (to drive a hackney carriage as well This is one of the big problem areas facing local authorities, as a private hire vehicle). However, it cannot work for drivers with inconsistent and haphazard reporting of matters of who solely hold a hackney carriage driver’s licence, because concern. There is a great deal of evidence to show that CLPD conditions cannot be attached to hackney carriage drivers’ is not being used to provide the necessary information in a licences (see Wathan v Neath Port Talbot CBC [2002] L.L.R. 749 timely fashion to enable local authorities to take steps to Admin Crt) and such requirements can only be imposed by adequately protect the public via the hackney carriage and
69 Taxi licensing: law and procedure update [3] private hire licensing regimes. It is impossible to see how somebody can be considered fit and proper on a probationary basis. A person is either fit and The statement in the draft Guidance, below, is completely proper or not, and earlier in the Guidance (paras 2.14 to 2.16) unacceptable and does nothing to improve the situation. it is stated quite clearly “that an applicant or licensee should (Paras 2.51 to 2.53.): not be ‘given the benefit of doubt’.”
The new procedure provides robust safeguarding It is suggested that this is incorrect and that probationary arrangements while ensuring only relevant information licences should never be granted. (Paras 2.69 and 2.70.) is passed on to employers or regulatory bodies. We would therefore strongly recommend that licensing authorities Safeguarding awareness maintain close links with the police to ensure effective and It is the Department’s recommendation that licensing efficient information sharing procedures and protocols are authorities provide safeguarding advice and Guidance in place and are being used. to the trade and that taxi and PHV drivers are required to undertake safeguarding training. There is useful information on data sharing and references to other relevant documentation. (Paras 2.54 to 2.61.) This is essential, and is already undertaken and required by many authorities. The endorsement of that approach in this Multi-agency safeguarding hub (MASH) Guidance is welcomed. (Paras 2.71 to 2.73.) This section raises awareness of a further source of information and intelligence sharing and states:“The Other forms of exploitation – ‘county lines’ Department recommends all licensing authorities should drug-traffickin establish a means to facilitate the objectives of a MASH” This is a useful, brief explanation of the county lines (Paras 2.62 to 2.64.) problem, which in itself becomes an integral part of safeguarding awareness. Again, this is to be welcomed. Complaints against licensees (Paras 2.74 to 2.78.) This endorses the LGA recommendation that local authorities should have a robust system for recording complaints, Language proficiency analysing trends and then considering appropriate action. This suggests (but it could be expressed more forcefully) that satisfactory oral and written English language skills are It goes further by requiring local authorities to produce necessary requirements for hackney carriage and private Guidance to passengers on making complaints that must be hire drivers. To that extent it is welcome. (Para 2.79.) available on their website and displayed in licensed vehicles. It also encourages effective partnership working between Enforcement licensing authorities and private hire operators to try to This encourages collaborative working between local get operators to raise concerns with the authority about authorities, and in particular mutual authorisation of offi ers. particular drivers. It also supports “penalty points schemes” and restates the suggestion that should be a clear simple and well-publicised It is suggested that this will enable complaints in relation complaints process. (Paras 2.80 to 2.83.) to out-of-area vehicles to be successfully directed to the relevant licensing authority, and also makes reference to Suspension and revocation of driver licences CCTV in the vehicles. This is a useful summary of the position relating to action against drivers’ licences. In particular it is welcome that It remains to be seen how effective this will be, because it emphasis is made that before any decision is made the driver not only requires action on the part of local authorities, but should be given the opportunity to state their case. also a great deal of increased awareness on the part of the public. (Paras 2.65 to 2.68.) The statement “If a period of suspension is imposed, it cannot be extended or changed to revocation at a later Duration of licences date” is welcomed, but should be more forceful and clearly This section states that licences for shorter periods than directed to the decisions in R (on the application of Singh) v the three years for drivers and five years for private hire Cardiff City Council [2013] LLR 108 Admin Crt, and Reigate operators, which are the maximum periods for which a & Banstead Borough Council v Pawlowski [2018] R.T.R. 10 licence can be granted, can be granted where “the licensing Admin Crt. (Paras 2.84 to 2.89.) authority considers that a probationary period is necessary”.
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Criminal record checks for PHV operators requirements. (Paras 2.104 to 2.116.) This is a useful ancillary section specifically related to private hire operators’ suitability, an area which has been Stretched limousines unfortunately overlooked by many authorities in the past. This section usefully makes the point that stretched Again this builds upon the suggestions made by the IoL in the limousines seating up to eight passengers are part of the “suitability guidelines” and is to be welcomed. (Paras 2.90 to private hire regime, and local authorities should take steps to 2.95.) license them, in order to protect the public from unlicensed and therefore unregulated and unauthorised use. (Paras PHV operators - ancillary staff 2.117 2.118.) It is vital that all staffof a private hire operator that have access to customer information are safe and suitable persons, and Consultation at the local level this section emphasises that, making useful suggestions as This emphasises the need for consultation and is a useful to how this can be achieved. (Paras 2.96 to 2.99.) conclusion to the Guidance. (Paras 2.119 and 2.120.)
PHV operators - use of passenger carrying Annex A vehicles (PCV) licensed drivers Previous convictions Guidance This section emphasises that a booking for a private hire This has already been considered above vehicle must be fulfilled by a private hire vehicle, and not via a PSV. It is to be welcomed. (Para 2.100.) Annex B Staying safe: Guidance for passengers PHV operators - record-keeping This is a suggestion for Guidance to passengers. Such This suggests the minimum information that should be information is already produced by many local authorities, recorded in a private hire operators booking records. but this may be a useful encouragement for those who do not Unfortunately it does not include the time at which the hiring do so. is required. This information will be of vital importance in determining whether or not the journey was conducted Conclusion lawfully, or whether the driver was guilty of illegally standing Does this Guidance actually take hackney carriage and private or plying for hire. Subject to that addition, this is a useful hire licensing forwards? Whilst there are useful suggestions section. (Paras 2.101 to 2.103.) made, and as detailed above, a lot of the document is to be welcomed, the vast majority of this activity is already In-vehicle visual and audio recordings – undertaken by local authorities who regard hackney CCTV carriage and private hire licensing as being an important and This section presents a useful overview of the advantages of significant part of their work. CCTV in vehicles, and the law and guidelines relating to them. This is a complex area, and there are clear conflicts between Whilst this may improve standards in authorities that are the need to protect both public and driver safety, and the currently falling short, it is a long way away from the heralded privacy perspective. “national standards” that the Government champions in the publicity accompanying this draft Guidance. As the Under It is clear that Guidance cannot mandate CCTV with Secretary of State herself states, legislation is required continual audio and video recording, and this Guidance goes to introduce national minimum standards, to enable as far as it probably can with the law as it currently stands. enforcement and compliance checks to be conducted by Legislation requiring this is urgently needed to overcome the any licensing offi er irrespective of where the vehicle and legitimate concerns of the surveillance camera Commissioner driver have been licensed and take appropriate action, and and the information Commissioner. to create a national database.
It is also important to recognise that although, as the If this legislation is not forthcoming in a very short period Guidance states, “vehicles may not be exclusively used for of time, the public will rightly regard this Guidance is being a business, also serving as a car for personal use” hackney second-rate attempt to protect public safety. carriages and private hire vehicles are licensed vehicles at all times (see Yates v Gates [1970] 2 QB 27 and Benson v James Button CIoL Boyce [1997] RTR 226) and should be regarded as business Principal, James Button & Co Solicitors vehicles, rather than private vehicles. Any private use must be subject to those criteria, and that should include any CCTV
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74 Journal of Licensing ISSN 2048-9110 Institute of Licensing Board
Daniel Davies - Chair Patrons Journal of Licensing Myles Bebbington - Vice Chair, Eastern Regional Director & Chair Philip Kolvin QC and Training & Qualifications Committee Jon Collins General Editor Deputy Editors Editorial Assistants Gary Grant - Vice Chair Leo Charalambides, FIoL Andrew Pring Natasha Roberts Barrister, Inner Temple Julia Sawyer Carla Sparrow Phil Andrews - Finance Director President George Barnes - South East Regional Director & Chair James Button Email: [email protected] Clare Bradley - Home Counties Regional Director & Chair Visit: www.instituteoflicensing.org David Chambers - Advisor to the Board Sarah Clover - West Midlands Regional Director & Chair The views expressed in the Journal are those of the writer and do not necessarily represent the views of the Institute & Chair of Management, Organisation & Development Committee of Licensing. James Cunningham - Northern Ireland Branch Chair Susanna Fitzgerald QC - Director Copyright lies with the author, all requests to be submitted to the Institute of Licensing © 2019 Institute of Licensing. John Garforth - North West Regional Director Gareth Hughes - London Regional Chair All rights reserved. No part of this publication may be reproduced in any material form (including photocopying or David Lucas - East Midlands Regional Director & Chair storing it in any medium by electronic means and whether or not transiently or incidentally to some other use of this Stephen McGowan - Scotland Regional Director & Chair publication) without the written permission of the copyright owner except in accordance with the provisions of the Martin Phillips - Wales Regional Director Copyright, Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency Ltd, Tim Shield - North East Regional Director & Chair Saff on House, 6-10 Kirby Street, London, EC1N 8TS, England. Applications for the copyright owner’s written permission Steven Wright - South West Regional Director & Chair to reproduce any part of this publication should be addressed to the Institute of Licensing. Full acknowledgement of author, publisher and source must be given.
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This issue shall be cited as (2019) 23 JoL. NUMBER 23 MARCH 2019 INSTITUTE OF LICENSING Journal of Licensing The Journal of the Institute of Licensing
IN THIS ISSUE
The (underutilised) role of mediation in licensing by Jeremy Phillips QC
Who saves the saviour? by Jon Collins
Rethinking Welsh taxi licensing by Tara O’Leary
Bright line policies: the right to say no by Philip Kolvin QC
Understanding how the costs system works
NUMBER 23 by Charles Holland
Taxi and private hire vehicle licensing - steps towards a more robust system
MARCH 2019 by James Button
Statutory Guidance - consultation by James Button
Opinion: In praise of cross-examination
JOURNAL OF LICENSING by Gary Grant
Opinion: When is an expert not an expert? When crime statistics are cited by Sarah Clover
The Journal of the Institute of Licensing © Institute of Licensing 2019 All rights reserved www.instituteoflicensing.org Institute of Licensing